Another Case of Judicial Abdication
The timing was stunning.
A Supreme Court decision empowering federal agencies to police themselves was handed down on Monday, right in the middle of public outcry over what appears to be egregious, arrogant overreaches by the IRS and FBI.
This may have been the Court’s most important decision of the year because of the precedent it sets for the role of our nation’s courts and the powers of federal agencies. The timing of the decision sets its significance in stark relief.
In Arlington v. FCC, the Court was faced with a straightforward question: Should unelected federal bureaucrats be allowed to decide for themselves the scope and reach of their own powers? One would think the answer would be obvious. As Chief Justice Roberts pointed out quite plainly in his dissent: “…with hundreds of federal agencies poking into every nook and cranny of daily life, that citizen might … understandably question whether Presidential oversight – a critical part of the Constitutional plan – is always an effective safeguard against agency overreaching.”
The National Federation of Independent Business Small Business Legal Center filed a brief in this case, arguing that—at least on questions of jurisdiction—it is improper for courts to defer to an agency’s interpretation of an ambiguous federal statute. Our concern was that, unless checked by the courts, federal agencies will have every incentive to continuously assert greater and greater regulatory powers, without regard to what Congress intended. As the old axiom goes—“foxes shouldn’t guard hen houses.”
Indeed, our constitutional system is based upon the premise that government exists to serve the people and that there should be checks on government power in order to protect our freedoms. So one would think the Court would say that only a judge can decide whether an agency is acting within its lawful powers, or whether it is exceeding those powers. But, that is not what the Court said in Arlington v. FCC.
Instead, the Supreme Court held that federal agencies—like the Environmental Protection Agency or the Department of Labor—can essentially decide for themselves the full scope and reach of their powers. In other words, a court will refuse to seriously question an agency’s assertion of jurisdiction in a case in which the agency has some—arguably—reasonable ground for asserting the power to adopt a regulation or to take an enforcement action against an individual or business.
This does not necessarily give agencies license to take regulatory actions when a federal statute clearly—and unquestionably—says ‘thou shalt not regulate.’ However, this is little comfort to the small-business owners we represent because it means courts will simply rubber-stamp federal regulatory decisions in nine out of ten cases. After all, if federal agencies know the courts will refuse to rigorously scrutinize aggressive regulatory decisions, they are only emboldened to continue to assert more far reaching powers.
Of course the Founding Fathers believed it is the proper role of the courts to say what the law is and to be an impartial umpire in disputes between citizens and government. Unfortunately the Arlington decision abdicates that time honored role. In deciding to defer to an agency’s understanding of its own powers, the Court has opened the door for agencies to take more cavalier legal positions—with our rights in the cross hairs. The end result is less freedom for everyone.
