Did X Mark the Spot? Brand X and the Scope of Agency Overrides of Judicial Decisions
In 2005, the Supreme Court issued a startling administrative law decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services. In Brand X, the Court held that agencies could override judicial constructions of ambiguous federal laws by promulgating their own conflicting, yet authoritative, interpretations. Justice Scalia dissented, arguing that the Brand X rule marked an unconstitutional threat to judicial supremacy and stare decisis. To date, the commentary surrounding Brand X has assumed that the decision had enormous repercussions on both agency statutory interpretation and the balance of powers between courts and agencies. The intense reaction to the decision notwithstanding, this Note explores whether the Brand X decision has really mattered in practice. This Note employs a unique dataset of rulemakings from the Federal Register to empirically analyze the extent to which agencies have engaged in Brand X-type overrides. Contrary to the prevailing understanding about the decision’s importance, this study finds that agencies rarely promulgate rules that conflict with established judicial precedent. Moreover, there is little evidence that Brand X actually changed agency behavior—agencies have not been more willing to disregard judicial precedent since the 2005 decision. Finally, where agencies have passed rules that displace judicial interpretations, this Note argues that they have done so in ways that are consistent with the institutional competencies and rationales underlying agency deference in the first place. These findings suggest that Brand X was not as momentous a decision as initially predicted, and that concern over its separation of powers implications lacks empirical support. Instead, the empirical evidence points to a more nuanced and balanced portrait of administrative agencies that see their role in partnership—and not in conflict— with the courts. * J.D., Stanford Law School, 2015. I would like to thank Daniel E. Ho, who both introduced me to administrative law and provided his guidance and mentorship throughout my research. I am also grateful to Salvatore U. Bonaccorso and participants of the Stanford Legal Studies Workshop for their insightful comments and feedback on earlier drafts. And lastly, the editors of the Stanford Law Review should be recognized for their diligent editing—this Note is greatly improved due to their efforts. All errors are my own. Volume 68 January 2016 Stanford Law Review Did X Mark the Spot? 68 STAN. L. REV. 235 (2016) 236 Table of