Douglas Walburg faces potential liability of $16-48 million. What heinous acts caused such astronomical damages? A violation of 47 C.F.R. § 16.1200(a)(3)(iv), an FCC regulation that enables lawsuits against senders of unsolicited faxes.
Walburg, however, never sent any unsolicited faxes; he was sued under the regulation by a class of plaintiffs for failing to include opt-out language in faxes sent to those who expressly authorized Walburg to send them the faxes.
The Federal Communications Commission has now taken the position that a federal enactment known as the Hobbs Act “prevents federal courts from considering challenges to the validity of FCC regulations when raised as a defense in a private lawsuit.” The Cato Institute has joined the National Federation of Independent Business in an amicus brief seeking Supreme Court certiorari, supporting Walburg’s position “that the Eighth Circuit was wrong to deny him the right to judicial review without having to initiate a separate (and impossible) administrative review.” [Ilya Shapiro, Cato]
In this video from Cato’s Constitution Day, the Baker & Hostetler attorney (and friend of this site) discusses the Supreme Court’s recent decision according deference to agencies’ determinations of their own jurisdiction. The case, which split the conservative justices, was one of the rare defeats for a Cato Institute amicus position last term.
Related: Michael Greve, John Yoo and Mike Rappaport on rethinking administrative law and the era of deference.
The new four-judge decision is unanimous, which means every judge to consider the matter has now agreed that the NYC Department of Health overstepped its legal powers. And they’re right, as I explain here at Cato. Earlier here, here, here, etc.
One person who presumably had not expected today’s result is Emily Bazelon at Slate, who has claimed that Judge Milton Tingling’s trial-court decision was somehow a venture into conservative activism. None of the New York appellate judges heard from today give evidence of sharing that view.
By a 6-3 vote yesterday, the Supreme Court decided that agencies deserve deference in determining the scope of their own jurisdiction. Bad move, argues Ilya Shapiro at Cato:
…why should courts defer to agency determinations regarding their own authority? … Whether a government body uses its power wisely or not, it cannot possibly be the judge of whether it has that power to begin with. Yet Justice Scalia, writing for the majority, essentially says that there’s no such thing as a dispute over whether an agency has power to regulate in a given area, just clear congressional lines of authority and ambiguous ones, with agencies having free rein in the latter circumstance unless their actions are “arbitrary and capricious” (what lawyers call Chevron deference, after a foundational 1984 case involving the oil company).
That makes no sense. As Cato explained in our brief, since the theory of deference is based on Congress’s affirmative grant of power to an agency over a defined jurisdiction, it’s incoherent to say that the failure to provide such power is an equal justification for deference. Furthermore, granting an agency deference over its own jurisdiction is an open invitation for agencies to aggrandize power that Congress never intended them to have. One doesn’t need a doctorate in public choice economics to recognize that we need checks on those who wield power because it’s in their nature to husband and grow that power.
Read the whole thing here.
Once again a court has struck down an overreaching Obama administration regulation. This time it was the Eleventh Circuit that dismissed as “absurd” a Department of Labor rationale for asserting its regulatory authority over the H-2B guestworker program. I’ve got more details at Cato at Liberty.
Justice Scalia and the Ninth Circuit, cats and dogs lying down together? The conservative justice was the only dissenter the other day in a 7-1 Supreme Court decision overturning the Ninth Circuit in the consolidated cases of Decker v. Northwest Environmental Defense Center and Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center. In doing so, the Court upheld (as the Ninth Circuit had not) the entitlement of the Environmental Protection Agency, and by implication other federal agencies, to deference in interpreting the meaning of its own regulations — so-called Auer deference, as distinguished from Chevron deference in the interpretation of Congressionally enacted statutes. Roger Pilon at Cato sorts it out and concludes that there is nothing paradoxical about the line-up: Scalia is distinctively vigilant against the dangers of excessive delegation of legislative power to executive-branch regulators, and deference tends to intensify the effects of such delegation. (Update: omitted link included now)
The AEI scholar and author of The Upside-Down Constitution notes that administrative law battles at the D.C. Circuit have calmed down a lot in recent years — maybe too much so [Law and Liberty] And Ramesh Ponnuru reviews Greve’s new book here.