Supreme Court to Consider Chevron Deference for Agency Jurisdiction

Among the Supreme Court’s seven cert grants today were the potentially important takings case Ilya notes below and another potentially important administrative law case: City of Arlington v. FCC. In City of Arlington (consolidated with another case), the Court limited the grant to the question whether Chevron deference should extend to agency interpretations of ambiguous statutory language that defines the scope of an agency’s jurisdiction. This is an important question that has divided the lower courts and the Supreme Court has never directly addressed. It’s also one that is likely to divide the current court (though along what precise lines I am reluctant to predict).

This question is of particular interest to me because it was the subject of an article I co-authored with GMU’s Nathan Sales, “The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences,” with whom I clerked on the D.C. Circuit. In this article, we explained why Chevron deference should not apply in such contexts, placing us firmly on the side of Justice Brennan and opposed to Justice Scalia. Brennan and Scalia debated this question in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, though the Court ducked the issue. Now it appears they will finally resolve it.

For prior posts on this issue, see here, here, and here.