Bridge Span 13-5: City of Arlington v. FCC Makes Us (Again) Aware of a Hard Truth

The City of Arlington v. FCC case results in a message we often hear but rarely take to heart, that is, agencies have the authority to fill in the gaps where legislation is unclear, or “ambiguous.”

Justice Scalia took an appropriate conservative route writing, “The question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority, or not.” But the ruling, particularly because the conservatives split the vote, caused much alarm.  I have to admit that the alarm struck me as odd, but then realized that some lessons are hard learned and often have to be learned more than once.

The lesson to be (re)learned is that legislation creates a better environment for investment because it is more predictable.  Legislation should always be preferred to regulation.  The notion that agencies can run riot where legislation is not clear is only one of the many problems of relying on regulation.  So it then follows that legislators should fully develop policy, leaving as little room for the regulators as possible.

Whining about what we already knew after the fact is a worthless exercise.  We can take the time to question whether Chevron deference is something we actually want, but at the same time we should be deciding how best get legislators to craft legislation that includes taking on the hard questions.

Likely we will always have the question of areas of ambiguity about agency reach so we will need to decide what to do with ambiguous legislation – perhaps just throw it out and tell the legislative branch to do its job?

For a press report on the case,

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