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.