Deference on Jurisdictional Questions: the SCOTUS Weighs In

Should courts defer to administrative decision-makers' interpretations of the limits of their own statutory authority? The Supreme Court of the United States finally answered that question in the affirmative today, in City of Arlington v. Federal Communications Commission. I think the majority is absolutely right, as I explain below. Indeed, Scalia J.'s majority opinion is must-read material for lawyers and law students interested in the concept of "jurisdictional error".

At issue was the Telecommunications Act, 1996 and, in particular, the meaning of the term "reasonable period of time" within which a local authority could take a decision to process applications for wireless facilities (such as cell phone towers).

On first view, this is not an obviously "jurisdictional" term. However, the Act delimits the powers of states and a federal regulatory agency (the FCC). The "jurisdictional" problem framed by the parties here was whether the FCC was stepping on the toes of the states by defining the time periods within which they would have to act: 90 days for additions to existing wireless facilities and 150 days for all other facilities.

For the SCOTUS, the question was whether deference was owed to the FCC or the courts should determine whether the FCC enjoyed the power to interpret the term at issue. A majority followed a deferential approach and affirmed the Fifth Circuit Court of Appeals' conclusion that the FCC's interpretation of "reasonable period of time" should be upheld. Of greatest interest is the discussion on the appropriateness of according deference to a category of "jurisdictional questions".

In his dissenting opinion, Roberts C.J. set out the conventional argument for judicial intervention on jurisdictional questions:

An agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.

There are three issues with this argument, each of them admirably addressed by Scalia J. in his majority opinion and Breyer J. in his concurrence. I have also addressed them at greater length elsewhere: see chapter 6 of A Theory of Deference in Administrative Law; and Part IV.B of "The Unfortunate Triumph of Form over Substance in Canadian Administrative Law".

The first issue is that it is impossible to distinguish between jurisdictional and non-jurisdictional questions. As Scalia J. put it, the distinction is a "mirage" (slip op at p. 5):

The reality, laid bare, is that there is no difference, insofar as the validity of agency action is concerned, between an agency’s exceeding the scope of its authority (its “jurisdiction”) and its exceeding authorized application of authority that it unquestionably has. (Slip op at p. 8)

Unsurprisingly, "jurisdictional error" has inevitably caused confusion wherever it has been retained. Because the distinction is a "mirage", it is impossible to explain why a question should be classified as jurisdictional or not. Worse, the real reasons -- presumably some considerations of general policy -- are hidden from sight. Indeed, jurisdictional questions can be used as a weapon by judges bent on intervening in the administrative process, because "every new application of a broad statutory term can be reframed as a questionable extension of the agency’s jurisdiction" (slip op at p. 9).

In the following passage, Scalia J. really nails the second issue. Whether something is "jurisdictional" or not is really a question about the limits of delegated powers: did the administrative decision-maker exceed its authority? But determining the limits of delegated powers is ultimately a question of interpretation: what boundaries did the legislature intend to set out; what relationship did it envisage between the administrative decision-maker and reviewing courts? There is no need to start this interpretive exercise with a distinction between jurisdictional and non-jurisdictional questions in mind. Applying a distinction between jurisdictional and non-jurisdictional questions is "arbitrary":

Both [agencies'] power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. Because the question—whether framed as an incorrect application of agency authority or an assertion of authority not conferred—is always whether the agency has gone beyond what Congress has permitted it to do, there is no principled basis for carving out some arbitrary subset of such claims as “jurisdictional.” (Slip op at p. 6)

The real issue is inevitably one of statutory interpretation: did the administrative decision-maker exceed its authority? On recognition of this aspect, the third issue becomes clear. The usual reasons for deference (relative expertise, complexity of the problem, participation of interested parties and -- sometimes -- democratic legitimacy) apply with equal force to all statutory provisions interpreted by administrative decision-makers and not just to "some arbitrary subset". Breyer J. explained the third issue well in his concurring opinion:

The Federal Communications Commission (FCC) argued that this provision granted it a degree of leeway in determining the amount of time that is reasonable. Many factors favor the agency’s view: (1) the language of the Telecommunications Act grants the FCC broad authority (including rulemaking authority) to administer the Act; (2) the words are openended—i.e. “ambiguous”; (3) the provision concerns an interstitial administrative matter, in respect to which the agency’s expertise could have an important role to play; and (4) the matter, in context, is complex, likely makingthe agency’s expertise useful in helping to answer the “reasonableness” question that the statute poses. (Slip op at p. 4)

Developing a distinction between jurisdictional and non-jurisdictional questions clouds the reality that administrative decision-makers are often better placed than courts to answer interpretive questions. The only argument in favour of making the distinction is the formal one made by Roberts C.J. But because there is no substantive basis for the distinction between jurisdictional and non-jurisdictional questions, there is no good reason to retain it. In Scalia J.'s colourful terms:

The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not engaged in reasoned decisionmaking. (Slip op at p. 10)

And as I said in my "Form and Substance" article:

The multiplicity of difficulties attendant upon the use of the traditional conception of jurisdiction can be avoided by requiring a holistic inquiry into legislative intent. Such an inquiry focuses on the substance of the statutory provisions at issue. A judge following such an approach does not read a statute with a formal conception of jurisdictional questions in his or her mind. A reviewing court’s decision to label a question as jurisdictional or non-jurisdictional should never fully answer the question of the appropriate degree of deference to accord because the concept of jurisdiction gives little or no guidance as to legislative intent...The concept of jurisdiction always remains relevant in the sense that decision makers cannot exercise unlimited power. But the boundaries of jurisdiction can be marked by the concept of unreasonableness; outside those boundaries, a decision could be struck down as unlawful, thereby securing some measure of judicial review.