Who Do You Trust More: Judges or Bureaucrats?

And no, there is no third option. Today’s Supreme Court decision in Arlington v. FCC involves a basic question: who gets to determine the scope of a federal agency’s power: the agency itself, or the courts? On this question, the Court’s conservative bloc split in two. Justice Scalia, writing for a majority that included Justice Thomas, held that federal courts must defer to the decisions of administrative agencies — even when those agencies make decisions about the scope of their own power. 

The dissent, penned by Chief Justice Roberts, joined by Kennedy and Alito, argues that even though courts may show deference to the substantive decisions of agencies (this is known as “Chevron deference” after a 1984 decision involving that company), courts do not have to defer to agency decisions setting their own jurisdiction. In his dissenting opinion, Roberts effectively shows how administrative agencies basically run the country and that it is, therefore, very dangerous to give them free rein to set their own boundaries.

But wait, says Scalia. Every time an agency interprets its governing statute it is making a decision about the scope of its own power. There is no real distinction between ”jurisdictional” decisions and non-jurisdictional decisions. “Chevron deference” is designed to protect the rule of law by giving us administrative certainty rather than having federal courts second-guessing the Executive Branch’s decisions. According to Scalia, Chief Justice Roberts’ attempt to carve out a area of agency rulemaking exempt from “Chevron deference” represents a judicial power grab in an area where courts should exercise that rare quality: judicial restraint.

What do you say?  Should we empower judges to set the limits of agency discretion?  Or should we trust the bureaucrats who are — at least to some extent — accountable to Congress and/or the President? Personally, I’m with the dissent on this one, but any opinion of Justice Scalia (and joined by Thomas) is worth a long, hard look.

  1. Pseudodionysius

    Judges versus Bureaucrats.

    Iran versus Iraq.

    Its a pity they can’t both lose. 

  2. billy

    I’m with the majority on this one. There is simply no escaping the fact that the only way to rein in bureaucratic over-reach is by electing a Congress and President committed to do diligent oversight.

    Unfortunately.

  3. skipsul

    The real mistake here is in Congress delegating away its powers.  It is on Congress to set and enforce limits.  The failure to do so is the heart of our troubles.

  4. The King Prawn
    skipsul: The real mistake here is in Congress delegating away its powers.  It is on Congress to set and enforce limits.  The failure to do so is the heart of our troubles. · 14 minutes ago

    This is my thinking on it. The battle should be between the elected branches with the judicial only refereeing the fight. Perhaps a chain linked octogon instead of a committee room is a more appropriate venue.

  5. skipsul
    The King Prawn

    skipsul: The real mistake here is in Congress delegating away its powers.  It is on Congress to set and enforce limits.  The failure to do so is the heart of our troubles. · 14 minutes ago

    This is my thinking on it. The battle should be between the elected branches with the judicial only refereeing the fight. Perhaps a chain linked octogon instead of a committee room is a more appropriate venue. · 0 minutes ago

    Thunderdome?

  6. tigerlily
    skipsul: The real mistake here is in Congress delegating away its powers.  It is on Congress to set and enforce limits.  The failure to do so is the heart of our troubles. · 23 minutes ago

    Exactly.

  7. Crabby Appleton 2.0

    Bureaucrats like justices are enjoined to administer and ensure compliance impartially. The problem arises when they do not or clearly appear not to do so with no real accountability or fear of meaningful sanction for failing to live up to that charge. Witness the IRS scandal or pick an instance of advocacy judicial ruling. I’m not sure I trust either of them implicitly.

  8. Joe

    Jonathan Adler, who contributes to National Review and Volokh, wrote a paper a few years ago about this topic, which is cited in Roberts’ dissent. I think it’s perfectly reasonable for courts to require Congress to clearly define the bounds of agency discretion, and for the courts to exercise Chevron deference on that discretion.

    As an aside, Administrative Law is basically Con Law: Part 2, and is often referred to as the fourth branch. It doesn’t get as much attention in legal analysis, yet probably has the greatest effect on our lives.

  9. EThompson
    Pseudodionysius: Judges versus Bureaucrats.

    Iran versus Iraq.

    Its a pity they can’t both lose. 

    Before Chief Roberts’ ruling on Obamacare as a “tax,” I would have voted for the Supremes.  Scalia and Alito continue to remain my heroes, but I agree that partisanship has infected every branch of the federal government.

    I will continue to encourage a more engaged interest in state and local elections; especially as we are able to vote here in Florida to renew terms of State Supreme Court judges.

  10. David Carroll

    I have to be with the dissent.  Let’s try a hypothetical case.  Suppose the Department of Homeland Security decided it had the authority to overrule the Supreme Court whenever it decided it didn’t like a decision.   Would Scalia and company defer to agency determination of Homeland Security’s jurisdiction then?   How can the agency decide its own jurisdiction without the oversight of judicial restraint?

    What if the Department of Labor decided it had the authority to regulate hazardous chemical disposal, because it is disposed of by workers, and  EPA thinks EPA has that authority.  Who wins?  How do you decide who wins if the courts simply defer to the agencies?  Defer to which one, I ask?

  11. Sabrdance

    Yes, I suppose it is too much to ask Congress to do it’s job and reign the bureaucracy in.

    I propose a compromise measure: bring back the spoils system.  It may be corrupt, but at least it can be fired.

  12. Douglas
    skipsul: The real mistake here is in Congress delegating away its powers.  It is on Congress to set and enforce limits.  The failure to do so is the heart of our troubles. · 1 hour ago

    I agree, but I think the dissenters had a point. This ruling basically takes away any power of courts to say “*insert alphabet agency here* has gone too far”. There isn’t any agency anywhere that should be able to expand the scope of their power on their say-so alone.

  13. Quinn the Eskimo
    Douglas

    This ruling basically takes away any power of courts to say “*insert alphabet agency here* has gone too far”.There isn’t any agency anywhere that should be able to expand the scope of their power on their say-so alone. · 5 minutes ago

    Agreed.  I think that’s why the court might provide a good check and balance to agency power.

  14. Derek Simmons

    The “least dangerous branch” lost the right to that label when Marshall decided that SCOTUS alone had the right to bear the chevron of interpretative infalibility: the power to decide what the Founders had penned in the U.S. Constitution. That chevron now ‘Chevron’ has been hoisted by the “Adminsitrative State” planted in the political humus from the compost heap of SCOTUS  created by the Statist Majority led by Scalia (whose statist views are sometimes cloaked in what erroneously passes for ‘conservatism.’) 

    I don’t buy your binary choice for ‘most trusted.’ Our system doesn’t work but not because of Marshall’s original distortion, but rather almost wholly because Congress is a feckless flock of Public Choice poster children. If our government can not function without the delegation by Congress not only of legislative but also executive and judicial powers to the Administrative State, then Congress has allowed our government to grow beyond the span of control designed by the Founders. And “woe unto you, lawyers!”

  15. raycon and lindacon

    In a country with a make-it-up-as-you-go morality, we trust no one that we do not have a first hand relationship with.  We extend some degree of trust to businessmen since there is a marketplace passing judgement on their efforts.

    We, however, trust no one in government.  Judges, legislators and bureaucrats are all members of the power seeking class, and can be trusted not at all.

  16. WI Con

    Who do I trust more?

    Rock, paper, scissors – shoot!

  17. Eric Hines

    The post proceeds from a false premise.  There is a third option, and it’s the only legitimate option.  The Congress sets the scope of a federal agency’s power.  If that boundary is unclear–as the existence of court cases (plural) demonstrates–it’s on Congress, ultimately on us as the Congress’ electors and employers, to apply clarity. 

    Both Scalia and Roberts are right within the boundaries set by the text of the law.

    Eric Hines

  18. Midget Faded Rattlesnake
    Larry3435:  Even so, I side with the dissent – not because I trust judges more, but only because judges don’t have the same incentive to expand bureaucratic power as do the bureaucrats who exercise that power.

    That was my first thought, too. (Though it also strikes me that judges may have some incentive to make capricious rulings in order to magnify judicial power.)

    My second thought:

    It’s really pathetic that the choice is no longer obvious. Bureaucrats should be merely afterthoughts in the governance of a free country, while judges ought to be the jealous guardians of our precious legal heritage.

  19. Pseudodionysius
    EThompson

    Pseudodionysius: Judges versus Bureaucrats.

    Iran versus Iraq.

    Its a pity they can’t both lose. 

    Before Chief Roberts’ ruling on Obamacare as a “tax,” I would have voted for the Supremes.  Scalia and Alito continue to remain my heroes, but I agree that partisanship has infected every branch of the federal government.

    I will continue to encourage a more engaged interest in state and local elections; especiallyas we are able to vote here in Florida to renew terms of State Supreme Court judges. · 1 minute ago

    Right now the 3 branches of the US Federal Government remind me of the 3 hyenas in Lion King, chasing each other like idiots until one of them starts gnawing on their own leg.

    #EatTheRich

  20. civil westman
    skipsul: The real mistake here is in Congress delegating away its powers.  It is on Congress to set and enforce limits.  The failure to do so is the heart of our troubles. · 7 minutes ago

    Just so. If congress is clear on agency jurisdiction, agencies may not overreach. Unfortunately, even with 2000 page bills – poorly conceived and written – agencies will likely continue to have free reign.

    Having just read the salient portions of the opinion and the dissent, I easily come down with the dissent. The majority (surprisingly for Scalia) write for an ideal world in scholarly fashion. Roberts, for the dissent, makes the compelling realistic case, quoting Madison: “the accumulation of all powers legislative, executive and judicial in the same hands… may justly be pronounced the very definition of tyranny.”

    He goes on: “The accumulation of these powers in the same hands is not an occasional or isolated exception to the Constitutional plan; it is a central feature of modern American government.”

    Without the possibility of judicial review we are Gulliver in Liliput, bound by thousands of restraints – only in our case resembling barbed wire (some of it electrified). No court review, no wire cutters.