The Supreme Court just ruled in the Arlington v FCC case, which will be one of the most significant rulings from the Supreme Court this year that few Americans will follow:
“In a powerful and convincing opinion by Justice Antonin Scalia, the court’s majority ruled that even when the agency is deciding on the scope of its own authority, it has the power to interpret ambiguities in the law. Scalia was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Clarence Thomas.”
Five justices means the Scalia opinion ruled the day, and it cut across ideological lines within the Court.
“The court has ruled that the agency is entitled to interpret such ambiguities, as long as its interpretation is reasonable. The reasoning here is that by giving rule-making authority to agencies, Congress implicitly delegated interpretive power to them, as well. The court has also noted that compared with the courts, the agencies are politically accountable and have technical expertise, so they are in the best position to resolve ambiguities.”
The problem with this ruling is that the phrase, “reasonable interpretation” is just as ambiguous as some of the legislative mandates Congress passes on to federal agencies.
“In giving an affirmative answer, Roberts expressed concern about ‘the authority administrative agencies now hold over our economic, social and political activities,’ and about a federal bureaucracy that ‘continues to grow.’ He insisted that ‘the danger posed by the growing power of the administrative state cannot be dismissed.’ “
Chief Justice Roberts, a known corporatist, is viewing the case with an eye towards agency interpretations that rule against large corporations. However, the opposite is more likely to occur, Scalia knows it, and had no difficulty in supporting the interpretation of legislative mandates by agencies: Agency capture is a well-established fact, and federal agencies ruling in favor of large corporations is more likely than agencies ruling against large corporations.
Agency capture is the situation where a regulatory process is ‘captured’ by those it is supposed to regulate and turned to their advantage.
One of the largest examples of agency capture exposed occurred in the wake of the BP oil platform blow out in the Gulf of Mexico, namely, the Minerals Management Service.
Although Robert’s intuition serves him well when he states “the danger posed by the growing power of the administrative state cannot be dismissed,” the danger he is framing within his mind – that of agency rulings against large corporations – will unlikely occur with any frequency.
Far more likely are the dangers posed by the administrative state that will be directed towards common Americans and small businesses, for large corporations are well aware of the power of regulatory control over future competitors and their potentially disruptive effects within our oligarchic or monopolistic markets.