Surprised

Flying under the radar of nearly everyone was the recent SCOTUS ruling on Arlington vs. FCC. The essential question of the case was this: if the law is ambiguous, who gets to interpret it? My local paper details why this ruling was nothing short of stunning.

The divisions within the court defied the usual ideological predictions. In a powerful opinion by Justice Antonin Scalia, the court’s majority ruled that even when an 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.

Are you FUCKING kidding me? Clarence Fucking Thomas is saying that a government agency has the power to interpret ambiguities in the law? How can this be?

For almost three decades, the court has ruled that when Congress gives a federal agency the power to issue regulations, that agency is usually authorized to interpret ambiguities in the original legislation. For example, does the word “source” in the Clean Air Act mean each smokestack in a plant or the entire plant? The court has ruled that the agency is entitled to interpret such ambiguities as long as its interpretation is reasonable. The idea is that by giving rulemaking authority to agencies, Congress implicitly delegated interpretive power to them as well. The court also has noted that, compared with the courts, the agencies are politically accountable and have technical expertise.

Scalia contended that Roberts was quite wrong to say that courts could identify a separate category of cases — those involving the scope of an agency’s authority. The question is always whether the agency is acting within the bounds set by Congress. “There is no principled basis for carving out some arbitrary subset of cases,” Scalia wrote. Forcing lower courts to draw ad hoc lines would make the law unpredictable and produce chaos. Scalia also insisted that the danger of agency overreaching is to be avoided, not by an arbitrary carve-out, but by requiring agencies to respect congressional limits on their authority.

So, the government agencies must be watched by Congress, not the courts. This means that the Congress has to start doing its fucking job and actually govern which makes me very, very happy.