Jonathan Adler’s research cited in Supreme Court dissenting opinion

Jonathan H. AdlerResearch by Jonathan Adler, the Johan Verheij Memorial Professor of Law, was cited in Supreme Court Chief Justice John G. Roberts’ dissenting opinion in a case that produced a significant administrative law ruling.

In City of Arlington v. FCC, the Supreme Court held 6-3 that courts should defer to an agency’s determination of its own jurisdiction. The concept of Chevron deference, considered one of the most important principles in administrative law, is well-established under Chevron USA, Inc. v. National Resources Defense Council. This is the first time, however, the Supreme Court decided whether deference applies to the scope of agency jurisdiction.

Adler co-authored the University of Illinois Law Review article, “The Rest is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences,” with Nathan Alexander Sales of the George Mason University School of Law.

In the article cited in the Roberts dissent, Adler and Sales argued that agencies should not receive deference, particularly where a statute is silent about the existence of agency jurisdiction.

Roberts specifically referred to the Adler-Sales determination that “if delegation really is an antecedent to deference…it cannot be that courts should defer to an agency’s views on whether a delegation has taken place.”

Robert then wrote, “In other words, we do not defer to an agency’s interpretation of an ambiguous provision unless Congress wants us to, and whether Congress wants us to is a question that courts, not agencies, must decide.”

Adler’s citation is found on page 11 of Roberts’ dissent.