Free State Foundation Comments on City of Arlington Decision

by Katherine Kennedy

Notice and Comment is pleased to share the following article by Randolph J. May, the President and Founder of The Free State Foundation, on the Supreme Court's recent opinion in City of Arlington, Tex. v. F.C.C.. The Free State Foundation is an independent, non-profit, Section 501(c)(3) free market-oriented think tank founded in 2006.

As we wrote about here, the City of Arlington decision does away with the distinction between jurisdictional and non-jurisdictional statutory interpretation traditionally used in analyzing agency interpretation. In the opinion, Justice Scalia stated that “[o]nce those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency's assertion of authority, or not.”

May's article, entitled "Chevron Deference and Regulatory Reform," describes the holding in detail and demonstrates the concern for the implications of this holding, as voiced by Chief Justice Roberts. "...[A]n agency cannot exercise interpretative authority until it has it; the question whether an agency enjoys that authority must be decided by a court without deference to the agency." Although the debate about the future and effects of this holding is seemingly endless, May takes the opportunity to propose regulatory reform. The article focuses on regulatory reform measures that would alter decision-making frameworks within agency commissions, consistent with previous legislation generated in the House and through suggestions for statutory edit. May's process-oriented regulatory reform suggestions are specific to FCC reform, but perhaps his observations and suggested framework will provide the impetus for Congress to act.

 

From October 1999-May 2006, May was a Senior Fellow and Director of Communications Policy Studies at The Progress & Freedom Foundation, a Washington, D.C.-based think tank. Prior to joining PFF, he practiced communications, administrative, and regulatory law as a partner at major national law firms. From 1978 to 1981, May served as Assistant General Counsel and Associate General Counsel at the Federal Communication Commission.

May has held numerous leadership positions in American Bar Association. He is a past Chair of the ABA Section of Administrative Law and Regulatory Practice and represents the Section in the ABA House of Delegates. He is also a Fellow of the National Academy of Public Administration.