Wednesday, March 20, 2013
Jonathan H. Adler, Case Western Reserve Law School, has published City of Arlington v. FCC: Questioning Agency Authority to Determine the Scope of Its Own Authority, in 7 Perspectives from FSF Scholars (No. 33) (November 2012). Here is the abstract.
In City of Arlington v. FCC the Supreme Court will consider whether courts should defer to an agency’s determination of its own jurisdiction. Although the need for courts to defer to agency interpretations of ambiguous statutory provisions under Chevron v. NRDC is well-established, the Supreme Court has never decided whether so-called Chevron deference should apply to statutory provisions delineating the scope of agency jurisdiction. There are several reasons courts should not confer Chevron deference to agency interpretations of statutes that define or limit an agency’s jurisdiction. First, the conferral of Chevron deference is premised upon the existence of agency jurisdiction. If there is no jurisdiction, there is no deference. So before a court can even consider whether an agency should receive deference for its statutory interpretation, it must first assure itself that agency jurisdiction exists. Granting Chevron deference to agency interpretations of their own jurisdiction also creates the risk of agency self-aggrandizement.
Download the article from SSRN at the link.