All of America continues to deeply mourn beloved Justice Nino Scalia. Our hearts and prayers go out to the entire Scalia family. Justice Scalia was the original faculty advisor to the Federalist Society when he was a law professor at the University of Chicago. He was warm, funny, generous, and kind; this blog’s regular readers know that and will always cherish and protect Justice Scalia’s memory and legacy.
Justice Scalia’s legacy is not something that is frozen in time and that ended with his passing; some of his most important legacies will likely work themselves out in the future. One of Justice Scalia’s legacies for the future is his thinking on today’s massive administrative state and Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Justice Scalia taught administrative law, among other subjects, and thus was well-versed in its history and effects. Chevron laid out a 2-step test for whether a court should defer to an administrative agency’s statutory interpretation: (1) Did Congress directly address the precise question at issue? And (2) if not, is the administrative agency’s answer based on a permissible construction of the statute?
While this blog post is not the appropriate forum to delve into a long discussion about Justice Scalia’s speeches and writings on administrative law, there are some relatively recent cases to get the reader started, and which strongly hint at Justice Scalia’s thoughts towards Chevron, administrative deference, and surrender of constitutional power. These cases include United States v. Mead, 533 U.S. 218, 246-49 (2001) (Scalia, J., dissenting) (stating that the Supreme Court has never “allowed a judicial interpretation of a statute to be set aside by an agency.”); Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1015-17 (2005) (Scalia, J., dissenting) (expressing concern about “judicial decisions subject to reversal by executive officers.”); City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863 (2013); and an unusual statement respecting the denial of certiorari in a case from the 2nd Circuit, United States v. Whitman, 574 U.S. ____(Nov. 10, 2014) ( “Does a court owe deference to an executive agency’s interpretation of a law that contemplates both criminal and administrative enforcement? … [W]hen a petition properly presenting the question comes before us, I will be receptive to granting it.”).
All legal thinkers owe it to Justice Scalia, and to the Republic, to continue analyzing and discussing the legal foundation for the modern administrative state along with the boundaries and propriety of its enormous powers. Justice Scalia gave guidance in his January 24, 1989 Duke University Law School Administrative Law Lecture about Chevron and judicial deference when he observed a still-poignant truth with his usual clever humor: “In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn’t think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.”
In the same lecture, Justice Scalia cautioned with a smile, “Administrative law is not for sissies – so you should lean back, clutch the sides of your chairs, and steel yourselves.”