Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].

The rule of law depends upon adherence to a system of binding rules of certain process norms, or what we often call “due process of law.” One of those process norms requires that the law, in order to be binding, provide sufficient clarity, predictability, and equal applicability. The rule of law safeguards against excessive and arbitrary exercises of government power.

These process norms deserve close attention when it comes to analyzing the regulatory and enforcement activities of administrative agencies. Recent activities of the Federal Communications Commission (FCC) warrant particularly close consideration. In The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses, published May 23 in the Federalist Society Review, we argue that the enforcement and merger review activities of the Commission undermine important rule of law principles.

Federalist Paper No. 62 addresses the “calamitous” effects of mutable and inscrutable laws “so incoherent that they cannot be understood.” The Federalist concludes, “Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?” The FCC’s departure from rule of law principles in the enforcement and merger areas is certainly injurious to the parties directly affected. But Commission deviation from process norms also undermines public confidence in the integrity and fairness of its processes. Both the Commission and the public would benefit if its officials would heed the Federalist’s injunction and the rule of law principles it reflects. It is our hope that our article will provide a further impetus for process reform at the Commission.

For the FCC to conform to the rule of law, it cannot regulate the affairs of private parties subject to its authority or sanction them for their conduct in the absence of rules that are fixed, predictable, and knowable in advance. Unfortunately, in important areas the Commission falls short of that standard.

The FCC often contravenes rule of law norms in making and enforcing its rules and in its review of proposed mergers. Our article explains, convincingly we hope, why this is so and provides examples of the agency’s abusive actions.

Absent changes that bring the agency’s actions in enforcement and merger reviews in line with rule of law norms, the agency’s institutional legitimacy is undermined, rendering its actions less deserving of public respect—and, in fact, less respected.

We hope you will agree that neither the FCC, nor any other independent agency for that matter, should act “independently” of rule of law principles. For more, please read our paper: The FCC Threatens the Rule of Law: A Focus on Agency Enforcement and Merger Review Abuses.