Should agencies receive Chevron deference for statutory interpretations that implicate the scope of their own jurisdiction? This question divided Justices Scalia and Brennan in Mississippi Power & Light Co. v. Mississippi (1988), and has not been conclusively resolved since. In The Rest Is Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, Nathan Sales and I address this question, and come down conclusively on the side of (drum roll please) . . . Justice Brennan. A draft is now up on SSRN and I've posted the abstract below:

Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of jurisdictional questions that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

On Friday, the U.S. Court of Appeals for the Sixth Circuit considered whether federal law preempts application of the Ohio Mortgage Broker Act to agents who sell mortgage products for State Farm Bank in State Farm Bank FSB v. Reardon. Yes, the court concluded. While the court agreed with the federal Office of Thrift Supervision, it did not show any deference to the OTS' conclusion. As the court explained in a footnote:

The approach we take today (i.e., answering the preemption question without consideration of the OTS Opinion and the level of deference it should be afforded) is consistent with the Supreme Court's approach in Watters v. Wachovia Bank, N.A., 127 S.Ct. 1559, 1572 (2007). In Watters, the Court determined that federal banking law preempted the application of a Michigan licensing and registration law to subsidiaries of a national bank. Id. The Court reached its conclusion without devoting any discussion to whether the Office of the Comptroller of the Currency's ("OCC") interpretation of the National Banking Act was entitled to Chevron deference. Id. The Court's failure to discuss the OCC's interpretation of the Act is especially significant because the lower courts who addressed the issue had decided the case based on Chevron deference to the OCC's interpretation of the applicable statute.

Whether the Court reached the proper result on the preemption question, it certainly handled the Chevron question properly. Whether a federal statute (or regulatory scheme) preempts state law is a question that should be answered by courts, not agencies, in the first instance, and courts should not presume that preemption questions have been delegated to federal agencies without an explicit delegation of such authority in federal law. In my view, this is essentially the sort of jurisdictional question that should not be subject to Chevron deference.