July 5, 2024

BUT WE WANTED TO AVOID THE LEGISLATURE!:

Biden’s gameplan against tech giants faces new legal dangers (Cristiano Lima-Strong and Eva Dou, July 5, 2024, Washington Post)

The Biden administration’s aggressive attempt to regulate tech and telecom giants like Google, Meta and Verizon has relied on the power of federal agencies, which have proposed sweeping rules for the internet age amid inaction in Congress.

The dynamic has granted outsize influence to enforcers at the Federal Trade Commission and Federal Communications Commission, among other agencies, who have pressed to rein in alleged misconduct by industry titans.

The strategy is now under threat after the Supreme Court curtailed agencies’ powers in a landmark ruling, overturning a decades-old legal precedent giving agencies greater leeway to interpret ambiguous federal laws. The court’s decision Loper Bright Enterprises v. Raimondo last week, striking down a principle known as the Chevron deference, has given business and industry groups ammunition to thwart tighter tech regulations proposed by the administration — imperiling some of the most significant actions ever by the U.S. government to check the world’s most powerful companies. If they succeed in slowing regulation, it could put the United States further behind its counterparts in Europe, who have moved more swiftly to set new rules.

the entire argument–that it’s so much easier to just impose laws via the Executive branch than to hash them out in the Legislature–is self-indicting.

ENDING CAPRICE:

Net Neutrality, and other FCC Initiatives Jeopardized Post-Chevron (Clay Calvert | Daniel Lyons, 7/05/24, AEIdeas)

Loper Bright is part of the Supreme Court’s broad critique of the administrative state’s power—a power perhaps best exemplified by then-President Obama’s infamous “pen and phone” strategy. Stymied by Congresses unable or unwilling to legislate, presidents from both parties increasingly used agencies to enact their policy decisions through statutory ambiguities. Chevron facilitated this end-run around the legislature by commanding courts to defer to an agency’s statutory interpretation if reasonable, even if the agency’s conclusion was not the best reading. The Major Questions Doctrine signaled the court’s discomfort with abuse of this power, and Loper Bright significantly narrows agencies’ ability to do so going forward.

Just how much agencies’ wings have been clipped is unclear. The judiciary’s job is to determine the meaning of a statute. The Court recognized that sometimes Congress intends a statute to delegate discretionary authority to an agency. And under the Skidmore doctrine, an agency’s interpretation can be persuasive evidence of a statute’s true meaning, though how persuasive depends on how convincing that interpretation is and how consistent the agency has been over time. But Loper Bright rejected Chevron’s fiction that every statutory ambiguity is a Congressional invitation for agencies to fill the gaps. Going forward, deference must be either expressed by Congress or earned by the agency, not assumed by default.

What does this mean for the FCC? The Communications Act is often difficult to read—the Supreme Court once called it a “model of ambiguity”—meaning the FCC often benefited from Chevron. In that sense, the post-Chevron era will create challenges for the agency. The recent net neutrality decision, for example, turns on the Act’s complicated distinction between “communications services” and “information services,” definitions written at the dawn of the Internet age. As I discussed earlier, one significant byproduct of Chevron was that the FCC could change its mind repeatedly about how to classify broadband—indeed, the court cited the FCC’s indecision as an example of how Chevron bred legal instability.