If there were ever a “First Commandment” of the federal judiciary, one candidate might be an oft-quoted phrase from Marbury v. Madison1: “It is emphatically the province and duty of the judicial department to say what the law is.”2 Although the phrase is regularly invoked by the Supreme Court,3 its precise meaning has long been debated. Some understand it to support a system of “judicial supremacy,” whereby the federal judiciary is the government’s authoritative source of legal interpretation.4 Others understand the phrase to support a narrower “departmentalist” view, in which the judiciary — just like any other branch of government — must interpret the law for itself in order to perform its constitutional functions.5 In the realm of administrative law, this “Marbury duty” has gained renewed significance, as the Court repeatedly invoked it as a reason to jettison Chevron6 deference in Loper Bright Enterprises v. Raimondo.7
Last Term, in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp.,8 the Supreme Court construed the Hobbs Act9 in a manner that supports a departmentalist view of its Marbury duty. At issue was whether a court “determine[s] the validity” of an agency action under the Hobbs Act when, during an enforcement proceeding, it disagrees with the statutory interpretation offered within that agency action.10 McLaughlin held that such disagreement does not necessarily invalidate the agency action, but instead merely reflects the court’s own interpretation of the statute to resolve the present case.11 This shows an express openness to the executive and judicial departments adopting conflicting interpretations of the same statutory provision — a departure from Chevron’s aim to offer one unified meaning of federal law, determined primarily by executive agencies.12 Therefore, McLaughlin suggests that the Marbury duty — as revivified in Loper — is not a full pendulum swing from Chevron’s “executive supremacy” to “judicial supremacy.” Instead, McLaughlin entertains a moderate, departmentalist approach.
The Administrative Procedure Act13 (APA) provides default rules for judicial review of agency action.14 For pre-enforcement challenges, the Supreme Court has read §§ 702 and 704 to “embod[y] [a] basic presumption of judicial review” of agency action.15 For challenges raised during enforcement proceedings in federal court, § 703 separately guarantees review of an agency action unless a “prior, adequate, and exclusive opportunity for judicial review” was available.16
The Administrative Orders Review Act (also known as the Hobbs Act) displaces the APA’s default rules for certain agency actions, including “final orders of the [FCC].”17 The Hobbs Act creates a special pre-enforcement review system for agency orders governed by the Act, under which aggrieved parties must file petitions for review within sixty days of the agency adjudication.18 All petitions are then channeled to a single federal court of appeals, which is vested with “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” the order.19
Separately, the FCC is responsible for administering the Telephone Consumer Protection Act20 (TCPA).21 That statute makes it “unlawful” to send any “unsolicited advertisement” to another person’s fax machine.22 The TCPA allows the FCC to “prescribe regulations to implement” this prohibition.23 It also creates a private right of action for those who receive unsolicited advertisements.24
In 2009 and 2010, a subsidiary of McKesson Corporation began sending unsolicited advertisements to potential buyers through a mix of traditional and online fax services.25 In 2014, one of those recipients — McLaughlin Chiropractic Associates — sued McKesson in the U.S. District Court for the Northern District of California.26 McLaughlin alleged that McKesson had violated the TCPA by sending the advertisements, and it sought class certification for all recipients of unsolicited faxes from McKesson.27
After years of litigation and an appeal,28 the district court eventually granted McLaughlin’s motion for class certification.29 Critically, the certified class did not distinguish between those who received McLaughlin’s advertisements via traditional fax machines and those who received them via an online service.30
While class certification was pending, an unrelated party petitioned the FCC for a declaratory ruling.31 The party asked the FCC to clarify whether it interprets the TCPA to create liability for sending unsolicited advertisements to online fax services.32 The FCC responded with Amerifactors Financial Group, LLC,33 which interpreted the TCPA to only apply to traditional fax machines — not online fax services.34 Neither McLaughlin nor any other potentially aggrieved party sought Hobbs Act pre-enforcement review of Amerifactors during the sixty-day petition period.35
In light of Amerifactors, McKesson moved to decertify the combined class of online and traditional fax recipients.36 The district court separated the online fax recipients into a new class,37 and later decertified their class altogether.38 In separating the online fax recipients, the court reasoned that it could not “diverge from Amerifactors’ fundamental holding” as to the TCPA’s meaning.39 That was because any challenge to Amerifactors would be governed by the Hobbs Act,40 which vests “exclusive jurisdiction . . . to determine the validity of” FCC orders in the petitioned court of appeals.41 Without such jurisdiction, the court could not “raise the same issues” addressed in Amerifactors by interpreting the same TCPA provision for itself.42 After the remaining class of traditional fax recipients received partial summary judgment,43 McKesson appealed to the Ninth Circuit.44 McLaughlin cross-appealed the district court’s class decertification.45
The Ninth Circuit affirmed.46 In a memorandum opinion, the panel agreed that, under controlling Ninth Circuit precedent,47 the Hobbs Act’s “exclusive jurisdiction” provision rendered the district court effectively “bound by . . . Amerifactors.”48 McLaughlin filed a petition for a writ of certiorari, which the Supreme Court granted.49
The Supreme Court reversed.50 Writing for the Court,51 Justice Kavanaugh concluded that “[t]he Hobbs Act does not preclude district courts in enforcement proceedings from independently assessing whether an agency’s interpretation of the relevant statute is correct.”52 Accordingly, the Court remanded to the district court to interpret the TCPA for itself and “afford[] appropriate respect” to the FCC’s interpretation.53
To begin its analysis, the Court divided the world of statutes authorizing pre-enforcement review of agency action into three categories. First, there are statutes that “authorize pre-enforcement judicial review,” but “expressly preclude judicial review in subsequent enforcement proceedings.”54 Second, there are statutes that “expressly authorize (or at least expressly contemplate)” enforcement-proceeding review.55 Third, there are statutes that are “silent” on whether enforcement-proceeding review remains available.56
For this third category of silent statutes, the Court fashioned a “default rule” that enforcement-proceeding review remains available.57 The Court considered several “[f]undamental principles of administrative law” that made this default rule “proper.”58 First, the Court has long required “persuasive reason to believe” a statute was intended to override the “‘basic presumption of judicial review’ of agency action.”59 Second, the Court read § 703 to “codif[y]” this presumption with respect to enforcement-proceeding review.60 Third, the Court characterized Abbott Laboratories v. Gardner,61 the seminal case greenlighting pre-enforcement APA review, as intended “to expand the opportunities for judicial review” rather than replace enforcement-proceeding review.62 Finally, the Court described this default rule as being fair to regulated “entities” who “may not have existed” during the sixty-day petition period or who may not have been engaged in regulated activity at the time.63
Having established this “default rule,” the Court then held that the Hobbs Act falls within this category of silent statutes.64 Although the Hobbs Act vests “exclusive jurisdiction . . . to determine the validity” of agency action in the petitioned court of appeals,65 that provision “does not expressly preclude [judicial] review in enforcement proceedings.”66
To reach this conclusion, the majority reasoned that courts do not “determine the validity” of agency actions whenever they disagree with the statutory interpretations offered therein.67 The Court read the phrase “determine the validity” to refer instead to “a court of appeals . . . entering a declaratory judgment that declares the [agency’s] order valid or invalid.”68 This reading comported best with the rest of the provision, which also vests the petitioned court of appeals with “exclusive jurisdiction” to “‘enjoin,’ ‘set aside,’ and ‘suspend’” the agency action.69 Because each of these is a “form[] of relief,” the Court invoked the noscitur a sociis canon to conclude that “determine the validity” refers to another “form[] of relief” available in pre-enforcement challenges — a declaratory judgment.70
The Court also distinguished other statutes and cases that involved similar language to that of the Hobbs Act. Of particular note was Yakus v. United States.71 That case held that the Emergency Price Control Act of 194272 (EPCA) — a statute with a near-identical “exclusive jurisdiction” provision to the Hobbs Act73 — did preclude enforcement-proceeding review.74 To distinguish Yakus, the Court read its holding to be predicated, in part, on a second provision in the EPCA that expressly forbade all other courts from “consider[ing] the validity” of regulations governed by the statute.75 Because no analogue to this second provision appears in the Hobbs Act, the Court distinguished the EPCA as a statute that expressly precluded enforcement-proceeding review.76
Justice Kagan dissented.77 In her view, the majority’s “default rule” was based on faulty premises. First, the Court’s long-recognized “presumption of judicial review” was only a presumption against preclusion of “all judicial review” of an agency action.78 Because the Hobbs Act provides for some review via pre-enforcement petitions, that presumption was inapposite here.79 Second, the majority’s reliance on § 703 was improper,80 as McLaughlin “never argued that it lacked a ‘prior’ or ‘adequate’ opportunity for review,”81 such that § 703 would independently guarantee enforcement-proceeding review.82 Separately, Justice Kagan disputed the majority’s reading of “determine the validity.”83 On her read, the district court would plainly “determine the validity” of Amerifactors if it disagreed with the FCC’s statutory interpretation, as the court “would need to decide (or ‘determine’) [whether] Amerifactors is legally wrong (or ‘invalid’).”84 Justice Kagan pointed to several prior cases that supported this reading.85
McLaughlin sheds light on how the Court conceives of its Marbury duty to “say what the law is,” as recently revivified in administrative law with Loper.86 To conclude that the Hobbs Act is silent on enforcement-proceeding review, the majority reasoned that, when a district court “determine[s] the meaning of the law,” it does not “determine the validity” of an agency action that adopted a contrary interpretation.87 This analysis suggests a departmentalist view of the Marbury duty in the administrative law sphere, as it expressly contemplates the coexistence of conflicting interpretations by the executive and judicial departments. As Justice Gorsuch explained during oral argument on this issue, even if a court “interpret[s] the statute in a manner that may be different than the agency,” “the [agency’s] order stands today as well as it did yesterday.”88
A departmentalist approach to statutory interpretation would mark a departure from the Chevron regime. Chevron was nondepartmentalist, at least insofar as it promoted a single unified interpretation of federal law.89 But, although nondepartmentalist, Chevron was anything but a doctrine of judicial supremacy. Under Chevron, courts uniformly deferred to reasonable interpretations of ambiguous statutes offered by administrative agencies.90 So, rather than granting the judicial department the definitive role of law declaration, Chevron instead granted it to the executive department where applicable.91
With a nondepartmentalist model such as Chevron’s, it would have been hard to deny that courts necessarily “determine[d] the validity” of agency action by disagreeing with the agency’s statutory interpretation.92 Under Chevron, agency interpretations had binding effect,93 and courts were compelled to consider them even where the agency was not a party to the litigation.94 To break free from Chevron deference, courts would necessarily have to engage with the agency’s interpretation and determine that it was unreasonable or otherwise foreclosed by the statute’s text.95 Under this framework, Justice Kagan’s dissent in McLaughlin would be eminently compelling — a court “would need to decide (or ‘determine’) that [an agency’s interpretation] is legally wrong (or ‘invalid’)”96 in order to escape the Chevron straightjacket and adopt an alternative interpretation.
The collapse of Chevron’s “executive supremacy,”97 however, took the wind out of this argument’s sails and allowed McLaughlin to adopt its departmentalist premise. To illustrate, one need only compare McLaughlin’s outcome to that of a nearly identical case from six years prior, PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.98 In PDR Network, the Court faced the identical Hobbs Act question presented in McLaughlin.99 But there, the Court found the question “difficult to answer”100 and remanded for the lower court to resolve “two preliminary issues.”101 Although neither of these two issues was resolved in McLaughlin,102 the Court answered the “difficult” question anyway.103 That might be because, in the time between PDR Network and McLaughlin, Chevron’s demise opened the door to a departmentalist approach, under which a court could exercise its Marbury duty to “say what the law is” without being compelled to consider the agency’s interpretation at all.104 On this view of Loper, an agency interpretation resembles persuasive precedent rather than a subject of collateral attack — by analogy, when one court of appeals rejects the persuasive precedent of another circuit, it does not thereby invalidate the other circuit’s case law.
To be sure, McLaughlin could have read Loper to swing the pendulum all the way from “executive supremacy” to “judicial supremacy,” rather than to departmentalism. Some scholars have read Loper that way.105 And others have long argued that the judiciary should assume the mantle of uniform law declaration,106 in part because “courts have certain capacities for dealing with matters of principle that legislatures and executives do not possess.”107 Nevertheless, McLaughlin charted a different path.
This departmentalist approach, if fully embraced, could have practical consequences in other areas of administrative law. Take, for instance, the applicable standard of review when an agency denies a petition for new rulemaking.108 Under current Supreme Court precedent, such judicial review is “‘extremely limited’ and ‘highly deferential’” to the agency’s choice not to undertake new rulemaking.109 But, when the Court adopted this deferential standard in Massachusetts v. EPA,110 it did so by expressly invoking Chevron,111 leading some lower courts to apply a “Chevron-esque analysis” when an agency denies a petition based on its own statutory interpretation.112 With Chevron’s demise, some scholars have suggested that Massachusetts v. EPA’s “highly deferential” review may be in jeopardy.113 But, if McLaughlin’s departmentalism rings true, then that need not be the case. Courts could instead respect the Executive’s own capacity to interpret the law and, as a general rule, not compel the Executive to promulgate rules against its interpretive will.
Any such benefits of McLaughlin’s departmentalism would, however, come as a one-way ratchet, only facilitating underregulation rather than overregulation. Once an agency takes affirmative regulatory steps that culminate in an enforcement proceeding, McLaughlin’s “default rule” preserving judicial review will apply.114 Absent express preclusion of judicial review, “parties may always assail a regulation as exceeding the agency’s statutory authority” in such a proceeding,115 and the agency’s interpretation will receive only “due respect” under Loper.116
McLaughlin’s departmentalist benefits to agencies could be further diminished if the Supreme Court itself adopts a contrary interpretation of a statute. On McLaughlin’s formal logic, the Court would no more “determine the validity” of an agency action when it interprets a statute than a district court does. But an interpretation from the Court could perhaps invalidate an agency action de facto, since lower courts would be universally bound by that interpretation.117 When coupled with Loper’s insistence that statutes “have a single, best meaning,”118 a vertically binding interpretation from the Court seems to leave little legally relevant space for a competing executive interpretation.
Beyond these practical effects, McLaughlin’s departmentalism leads to something of an ironic result. Although McLaughlin appears to tolerate agency disagreements with courts as to “what the law is,” it uses this premise to expand the opportunity for judicial review of agency action during enforcement proceedings.119 Because of McLaughlin, enforcement-proceeding review is now guaranteed for agency actions governed by the Hobbs Act or any other statute lacking express review preclusion.
But that irony is quite Marbury-esque, as McLaughlin, like Marbury, arguably denied the judiciary one power in order to assume a greater one.120 Without McLaughlin’s implicit denial of judicial supremacy, district court judges operating outside of the Hobbs Act context may have felt empowered to “determine the validity” of agency actions simply by disagreeing with the statutory interpretation therein — perhaps by assuming broad authority to vacate regulations, even in collateral proceedings. By disclaiming such ambitions, McLaughlin simultaneously expands the opportunities for judicial review of agency action, potentially calling into question “even the most solid-seeming regulatory regimes” governed by the Hobbs Act.121 McLaughlin, in a microcosm, shows how a Supreme Court may increase justiciability in the administrative law sphere122 while firmly rejecting “an imperial Judiciary.”123