Sharp Divide Over Chevron Deference

by Ed Whelan

Today’s Supreme Court ruling in City of Arlington v. FCC reveals a sharp divide—not along the usual ideological lines—among the justices over when an agency’s interpretation of a statutory ambiguity is entitled to deference under the Chevron framework that the Court adopted in 1984. A quick overview:

In his majority opinion for five justices (himself, Thomas, Ginsburg, Sotomayor, and Kagan), Justice Scalia holds that “an agency’s interpretation of a statutory ambiguity that concerns the scope of its regulatory authority (that is, its jurisdiction)” is entitled to Chevron deference. Among other things, Scalia rejects as a “mirage” the “distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations.” (Slip op. at 5.) Rather, “the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.” (Slip op. at 9.)

In dissent, the Chief Justice, joined by Justices Kennedy and Alito, sets as backdrop the “danger posed by the growing power of the administrative state” and the role of Chevron deference as “a powerful weapon in an agency’s regulatory arsenal.” (Dissent at 4.) The Chief doesn’t posit a line between jurisdictional and nonjurisdictional interpretations, but instead maintains that an agency interpretation warrants Chevron deference “only if Congress has delegated authority to definitively interpret a particular ambiguity in a particular manner.” (Dissent at 11.) Whereas the Chief Justice defends his approach as consistent with the Court’s precedents (“We have never faltered in our understanding of this straightforward principle”), Scalia says that the Chief’s approach “proposes … a massive revision of our Chevron jurisprudence.”

On a first skim, Justice Breyer’s separate opinion concurring in the judgment seems to me more consistent with the Chief’s general approach. So that would mean that there is a 5-to-4 divide on the Court.

There will surely be vigorous discussion and debate among administrative-law experts over this ruling.

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