Thursday, June 30, 2005 - The Progress & Freedom Foundation Blog

Brand X, Chevron, and Political Accountability

We all know now that in its now famous Brand X decision, the Supreme Court majority accorded famous Chevron deference to the FCC's interpretation of the meaning of the statutory terms "telecommunications" and "information services". The Supreme Court's 1984 Chevron decision held that if a statutoty directive is ambiguous, then courts must defer to any reasonable agency construction of the statute. If the statutory directive is unambiguous, then, of course, the agency administering the statute must implement the clear statutory mandate.

Now, in Brand X, speaking through Justice Thomas, the Court ruled that when a court of appeals (here, perchance, the misbegotten almost-never-right Ninth Circuit) already has ruled on the very issue (here, perchance, the meaning of "telecommunications" and "information services") that again comes before the court after a subsequent agency interpretation, the court must defer to the agency's interpretation if --and this is a big IF--the earlier judicial decision was not based on the view that the statute unambiguously required that construction. Whew! Exhale!

Or, stated more succintly another way: Chevron deference trumps the venerable doctrine of stare decisis that generally requires courts to adhere to precedent unless the court's ealier decision had held its construction followed from the unambiguous terms of the statute.

So, Brand X represents a very strong affirmation of the Chevron doctrine that courts must defer to agencies' reasonable contructions of ambiguous statutes. But why? Ray Gifford quite rightly asks: Doesn't Brand X "deepen the hazard that agencies can hang back and wait for a court to decide a hard case and then act in quasi-appellate fashion to reverse that construction?" I suspect the answer is, "Probably not..." This is because it is quite risky for an agency to try to guess whether a court that has for review an issue of statutory construction will find the statutory provision ambiguous or not. After all, Justice Scalia and his two dissenting colleagues didn't find the statutory terms ambiguous at all (don't get me started on the metaphysics inherent in interpretations that depend on analogizing telecommunications and information services to pizzas with or without delivery and puppies with or without leashes!). Even Justice Breyer, concurring, thought the FCC's decision fell "just barely" within its statutorily delegated authority.

Okay. All of this was just a set-up for allowing me to make (what is to me) a very interesting point that is little remarked upon in the thousands of law review articles that have been written on Chevron. First put in mind this most oft-cited passage from Chevron that constitutes its principal rationale:

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices -- resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

In other words, here the Court is saying that when Congress has implicity delegated authority to an agency by leaving statutory gaps to be filed we prefer that agencies rather than the courts make the decision because agencies are politically accountable. But note the reference to "the incumbent administration's views" and the Chief Executive being "directly accountable to the people". Chevron itself involved a decision of the EPA, an executive branch agency whose administrator can be removed at will by the Chief Executive. The FCC, as a so-called independent regulatory agency, is not considered part of the executive branch, and the commissioners are not subject to removal at will by the Chief Executive.

Granted, the FCC is more politically accountable than the judiciary. But it has always seemed to me that by virtue of its measure of independence from the Chief Executive that the agency, at least under the Chevron rationale, might be entitled to less deferential review that an executive branch agency.

I'm not familiar with any decision making this point, and it doesn't seem to have entered Justice Thomas' mind. But it enters mine whenever I re-read Chevron--and when I wonder whether the FCC would perform better if its policymaking functions were actually subject to the political accountability that comes with oversight by the Chief Executive.

posted by Randolph May @ 4:22 PM |