The Volokh Conspiracy

Today, in Arlington v. FCC, the Supreme Court held 6-3 that courts should confer Chevron deference to agency interpretations of ambiguous statutory provisions concerning the scope of agency jurisdiction.  Justice Scalia wrote for the majority.  Justice Breyer filed an opinion concurring in part and concurring in the judgment.  The Chief Justice dissented, joined by Justices Kennedy and Alito.

I participated in an amicus brief in this case, largely based on an article I co-authored with Nathan Sales. Alas, we were on the losing side.  My prior posts on this case are here and here, and earlier posts on the issue are here and here.

I hope to have more to say about the decision later today.

Judge Edward Korman is unhappy with the Administration’s handling of Plan B contraception. On Friday, the NYT reports, he denied the Administration’s request to stay his order requiring that Plan B be made available over-the-counter to all women and girls of any age.

Salon has an interesting report on Tuesday’s court hearing before federal district judge Edward Korman in which the Administration sought to defend its newly announced policy of limiting the over-the-counter availability of Plan-B contraception  to females 15 and older instead of removing all restrictions as Korman had previously ordered.  A taste:

This morning, Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel’s every other sentence with assertions like, “You’re just playing games here,” “You’re making an intellectually dishonest argument,” “You’re basically lying,” “This whole thing is a charade,” “I’m entitled to say this is a lot of nonsense, am I not?” and “Contrary to the baloney you were giving me …” He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women” with the ID requirement for the drug.

The Administration is also appealing Korman’s order.

This morning, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit, in National Association of Manufacturers v. National Labor Relations Board, struck down a new NLRB regulation requiring employers to post a notice of employee rights under the National Labor Relations Act on their properties and websites.  Judge Randoph wrote the opinion for the court finding that the various means of enforcing the rule violated various provisions of the NLRA.  Among other things, Judge Randolph concluded that if Section 8(c) of the NLRA prohibits the Board from finding an employer guilty of an unfair labor practice for posting a notice informing workers of their right not to join a union, it cannot be an unfair labor practice for an employer to refuse to post a notice informing workers of their right to unionize.  Judge Henderson also wrote a concurring opinion, joined by Judge Brown, articulating additional reasons to find the rule invalid.

Of note, the court did not rely upon its previous decision invalidating President Obama’s recess appointments to the Board.  This was at issue because the publication date of the rule in the Federal Register occurred after the expiration of Wilma Leibman’s term, at which point the Board was left with only two Senate-confirmed members.  This did not matter, Judge Randolph explained, because the Board actually promulgated the rule before Leibman’s term expired and thus before the NLRB lost its quorum.  While the date of Federal Register publication matters for determining when petitioners must challenge agency rules — it is such publication that puts regulated parties on notice — once an agency has actually finalized and filed its rule with the Office of the Federal Register, the agency’s action is complete.  Thus the Board had a quorum when it acted to promulgate the rule, even if other parts of the federal government had additional responsibilities to fulfill.

Another challenge to this rule is pending in the U.S. Court of Appeals for the Fourth Circuit.

Today’s Cleveland Plain Dealer has an interesting investigative report on how mine operators fight mine safety penalties imposed by the Mine Safety and Health Administration. Here’s a taste:

Critics say that in fighting back, mine owners are clogging up the appeals process and wearing down a system that lacks resources to match the challenge. Like a game of Chutes and Ladders, the process plays out year after year: federal inspectors cite a mine, the agency proposes fines, the mine owner appeals and gets many of the fines reduced — and the process repeats itself anew. It raises questions about how sensible and effective the mine-safety system is.

But the federal Mine Safety and Health Administration, or MSHA, defends the system, saying inspections and citations, regardless of how the fines are resolved, create safer mines. MSHA is a division of the Department of Labor.

For their part, mine owners and representatives say they just are exercising their legal rights.

The story also notes a case pending in the U.S. Court of Appeals for the Sixth Circuit challenging a new MSHA rule that would allow the agency to base penalties on all serious citations issued to a mine operator in the preceding year, even those that are contested (and that could be subsequently overturned).

As expected, the Obama Administration is asking the Supreme Court to review a decision by the U.S. Court of Appeals for the D.C. Circuit holding invalidating the President’s recess appointments to the National Labor Relations Board. The cert petition is here.

The NYU Journal of Legislation and Public Policy has published my article “Placing Reins on Regulations: Assessing the Proposed REINS Act” in its latest issue.  The arguments I make in this piece should be familiar to readers of this blog.  In the same issue, the NYUJLPP has also published “The REINS Act and the Struggle to Control Agency Rulemaking” by Professor Jonathan Siegel of the GW Law School.  Professor Siegel agrees with me that the REINS Act is constitutional, but thinks it would be a bad idea.  In addition, the NYUJLPP has posted a short response essay by former OIRA Adminsitrator Sally Katzen and Julian Ginos raising constitutional doubts about the proposed reform.

For those interested, my prior posts on the REINS Act can be found here.

As noted below, Justice Scalia was the lone dissenter in Decker v. Northwest Environmental Defense Center.  The reason was not that Justice Scalia has decided to become the Justice Douglas of the 21st century.  Rather, it was due to his relatively newfound opposition to Auer deference (aka Seminole Rock deference), under which courts are to defer to an agency’s interpretation of its own regulation.  Justice Scalia previously expressed concerns about Auer deference in his Talk America concurrence.  In Decker, however, Justice Scalia made clear he’s gone beyond questioning Auer, and now wants to see it overturned.  As Justice Scalia summarized:

For decades, and for no good reason, we have been giving agencies the authority to say what their rules mean, under the harmless-sounding banner of “defer[ring] to an agency’s interpretation of its own regulations.”

Two Terms ago, in my separate concurrence in Talk America, I expressed doubts about the validity of this practice. In that case, however, the agency’s interpretation of the rule was also the fairest one, and no party had asked us to reconsider Auer. Today, however, the Court’s deference to the agency makes the difference . . . . And respondent has asked us, if necessary, to “‘reconsider Auer.’” I believe that it is time to do so.

Justice Scalia explained his reasons for rejecting Auer deference

 The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” . . . But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. . . . The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains.

Our cases have not put forward a persuasive justification for Auer deference. The first case to apply it, Seminole Rock, offered no justification whatever—just the ipse dixit that “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” . . .

While the implication of an agency power to clarify the statute is reasonable enough, there is surely no congressional implication that the agency can resolve ambiguities in its own regulations. For that would violate a fundamental principle of separation of powers—that the power to write a law and the power to interpret it cannot rest in the same hands. “When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T.Nugent transl. 1949). . . .

Auer deference encourages agencies to be “vague in framing regulations, with the plan of issuing ‘interpretations’ to create the intended new law without observance of notice and comment procedures.” Anthony, The Supreme Court and the APA: Sometimes They Just Don’t Get It, 10 Admin. L. J. Am. U. 1, 11–12 (1996). Auer is not a logical corollary to Chevron but a dangerous permission slip for the arrogation of power. . . .

In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot justify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.

So as Justice Scalia concluded (albeit in the introduction of his opinion:

The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed.

Enough is enough.

Lest anyone assume Justice Scalia’s lone dissent indicated that the rest of the Court is content to leave Auer be, Chief Justice Roberts authored a concurring opinion, joined by Justice Alito, explaining that it would have been inappropriate to reconsider Auer deference in Decker, but that the Court should be prepared to do so in a subsequent case.

The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be appropriate to reconsider that principle in an appropriate case. But this is not that case.

Respondent suggested reconsidering Auer, in one sentence in a footnote, with no argument. . . . Petitioners said don’t do it, again in a footnote. . . .

The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue.

I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent.

Does this mean the Court will rush to find a case in which to reconsider Auer?  Perhaps, but the Court passed up a prior opportunity to do that just last term.  Nonetheless, it is clear that at least one justice would like to see Auer put to rest.

Eight more states have joined a lawsuit challenging the constitutionality of various provisions of the Dodd-Frank financial reform law.  The states are Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas and West Virginia. As three states (Oklahoma, Michigan, and South Carolina) had already brought suit, this brings the total number of states involved in the suit to eleven.

For links to Michael Greve’s take on the suits, see here.

Tomorrow the Supreme Court will hear oral argument in City of Arlington v. FCC. This dispute between local governments and the Federal Communications Commission over the latter’s authority over the application of local zoning rules to wireless facilities could well produce the most significant administrative law decision in a decade. At issue — and the only question upon which the Supreme Court granted certiorari — is whether federal courts should apply Chevron deference to agency determinations of their own jurisdiction.

Although the Supreme Court has never addressed this question head on — and the matter has divided the federal circuit courts — the prevailing wisdom is that Chevron deference should not be available in the jurisdictional context. As I explain in this background paper for the Free State Foundation, Chevron deference is based upon a delegation of interpretive authority by Congress to an administrative agency. Thus to apply such deference to a jurisdictional question is to let the agency determine, in the first instance, how much authority Congress delegated. Such a result is inconsistent with the rationale for Chevron, as clarified in subsequent cases such as Mead, would facilitate agency aggrandizement, and could raise troubling constitutional questions about the nature of agency authority.

Although several parties filed briefs in support of the FCC’s assertion of authority in this case, most conceded the question before the Court. For instance, the briefs by Cellco Partnership d/b/a/ Verizon and AT&T both take the petitioners’ side on the Chevron question, only to argue that the FCC should nonetheless prevail in the immediate dispute with regard to local zoning laws and wireless facilities. Only T-Mobile comes to the FCC’s defense on the Chevron question upon which the Court granted cert. None of this means the petitioners will prevail, but I think it does indicate how the FCC’s position is out of step with the prevailing understanding of Chevron and its progeny.

This issue is of particular interest as I co-authored an article on this question with Nathan Sales several years ago,  “The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences.”  We also participated in a brief of legal academics and the Cato Institute. My prior posts on this case can be found here, here, here, and here.

Regulatory policy mavens have been wondering all year when the federal government would release the Unified Agenda of Regulatory and Deregulatory Actions. This report details the various actions planned by federal regulatory agencies. The Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget is supposed to release the Unified Agenda twice a year, but until December — late December — no report had been issued. Now the wait is over. Just in time for Christmas OIRA released a single report for 2012 (available here). Some had speculated the report had been withheld because federal agencies were planning a “tsunami” of post-election regulations. Yet according to the Washington Times, that does not appear to be the case.

And speaking of OIRA, former administrator Cass Sunstein has posted a forthcoming article on myths and realities” about the office.

Today, in Richards v. NLRB, the U.S. Court of Appeals for the Seventh Circuit declined to consider whether President Obama’s recess appointments to the National Labor Relations Board were constitutional. As Judge Williams explained for the court, the petitioners lacked standing to challenge the NLRB’s actions, as the complained-of policy had already been overturned. Other cases in which the constitutionality of the NLRB appointments is being challenged remain pending in other circuits. (Hat tip: Josh Gerstein, Politico)

[Note: Link fixed]

Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, in yesterday’s decision, Judge Sullivan found that none of the plaintiffs, which included members of Congress and individuals claiming they would benefit from the passage of filibustered legislation, have standing to bring the suit. He further found that the case presents a nonjusticiable political question.

The plaintiffs may well appeal, but I’m willing to bet they will not fare any better in front of the U.S. Court of Appeals for the D.C. Circuit. This is the last court in which to press an aggressive standing claim. This lawsuit may generate good press for filibuster opponents, but it’s a legal nonstarter.

P.S. I can’t help but note that it was not that long ago that Common Cause vehemently opposed any effort to eliminate the filibuster, particularly when used to block judicial confirmations. Now, however, Common Cause not only supports filibuster reform, but it also thinks the filibuster is unconstitutional.

Among the regulatory reform proposals passed by the House of Representatives this year was the “REINS Act,” a proposal to require Congressional approval before major regulations could take effect. Supporters and opponents of this bill have presented the REINS Act as a deregulatory tool. The actual effect of the REINS Act is likely to be more modest, for reasons I explain in an article forthcoming in the NYU Journal of Legislation and Public Policy (available on SSRN here). While I believe the REINS Act would significantly increase legislative accountability for regulatory policy, I doubt it would stop all that many regulatory initiatives, particularly those with significant public support.

Passage of the REINS Act has always been a long shot. Though it passed the House of Representatives, the Senate has shown little interest. This month’s election makes the REINS Act’s chance of becoming law even more remote, as the Democrats have increased their Senate majority and President Obama has said he would veto REINS were it to reach his desk. Debates over regulatory reform will continue nonetheless. So, for those interested, here’s the abstract of the paper SSRN.

Over the past several decades, the scope, reach and cost of federal regulations have increased dramatically, prompting bipartisan calls for regulatory reform. One such proposed reform is the Regulations of the Executive in Need of Scrutiny Act (REINS Act). This proposal aims to restore political accountability to federal regulatory policy decisions by requiring both Houses of Congress to approve any proposed “major rule.” In effect, the REINS Act would limit the delegation of regulatory authority to federal agencies, and restore legislative control and accountability to Congress. This article seeks to assess the REINS Act and its likely effects on regulatory policy. It explains why constitutional objections to the proposal are unfounded and many policy objections overstate the REINS Act’s likely impact on the growth of federal regulation. The REINS Act is not likely to be the deregulatory blunderbuss feared by its opponents and longed for by some of its proponents. The REINS Act should be seen more as a measure to enhance accountability than to combat regulatory activity.

The federal government is supposed to publish the Unified Agenda of Regulatory and Deregulatory Actions twice a year. This document provides a rundown of all the various regulatory (and deregulatory) actions that are in various stages of the regulatory pipeline. In this way, the agenda provides an overview of the federal government’s regulatory activities, and alerts readers to regulatory actions that could be coming down the pipe. The agenda is supposed to be released in the spring and fall, though it often comes out late. This year, however, neither spring nor fall edition has been released. Nor has the federal government published the final version of its report on the costs and benefits of federal regulations. The draft was released in March. Wayne Crews comments:

These delays matter because the president promised to slim the regulatory waistline and has issued specific executive orders in the process. Expediting the data that would ease outside assessments would seem an obvious must-do.

It is true Bush issued more overall rules (coming off the Clinton era) over the past three years as the president likes to claim; but Obama issued more of the high-dollar “economically significant” variety  the Unified Agenda highlights. It’d be nice to have the figures and plans for 2012. . . .

Accountability for regulations matters, and disclosure is a prerequisite.