That administrative agencies have a pervasive presence in our lives is undeniable. That is a reason why our firm offers to represent businesses and professionals facing governmental scrutiny.
It is also a reason why administrative matters come before the courts on a fairly frequent basis, often enough resulting in even more power to the state. I blogged earlier to explain that courts had declared themselves happy to defer to administrative agencies’ interpretation not only on the law they are charged to administer, but on their own regulations, even when their take first comes as part of a lawsuit, and even when the agency is a party to that lawsuit.
It just got worse. The question came up whether administrative agencies’ decisions as to whether they had the power to decide something in the first place should be entitled to deference as well. The Supreme Court answered in the affirmative, saying that agencies’ decisions should be deferred to not only when they opine on what the law said, but when they decide whether the law gave them the power to act at all. Prepare for a free-for-all grab-fest. Administrative agencies may now decide what they have power over, and the courts will not stand in their way unless their decision is essentially arbitrary.
The Supreme Court case that brought us this sad news garnered little attention because the underlying topic was not interesting in a mainstream-media sort of way. The FCC had taken the position that it had the right to decide whether state and local authorities acted on siting request for cell towers quickly enough. So long as our cell phones work, the only people interested in this question are city councils and cell phone companies – not exactly front page news for the New York Post. And yet, the decision that came out of that is more likely to impact our lives that most others.
Law is not always “sexy,” but it pays to have an attorney who pays attention.