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.

WHEN YOU STRIP LAW OF MEANING:

Freedom and a Funeral for Chevron Deference (Jonathan H. Adler, July 4, 2024, AIER)

In theory, Chevron was supposed to help provide greater legal certainty, both by providing judges with a clear framework and producing greater uniformity of federal law. In practice, the doctrine appeared to serve the latter purpose, in that it fostered greater agreement across federal courts and seemed to reduce the extent to which judges’ policy preferences influenced their decisions. But it did not produce stability or predictability. To the contrary, it empowered agencies to revise and reverse their statutory interpretations to align with their policy goals, and so long as no court declared that the statute was clear, they could get away with it. Chevron itself involved a Reagan Administration reversal of Carter Administration policy, and the doctrine has been used to justify agency about-faces on the meaning of regulatory laws when the White House changes hands.

Republican liberty exists to protect citizens from such arbitrary and capricious prosecution.

THE CONSTITUTION SEPARATES POWERS:

No, Overruling Chevron Won’t Turn Judges into Policymakers (Thomas A. Berry, 7/03/24, Cato)

First, a quick recap of the (now overruled) Chevron doctrine. In Chevron v. NRDC (1984), the Supreme Court announced a new “two‐​step” framework for resolving disputes over the scope of an agency’s statutory authority. Under this standard, a court must first consider “the question whether Congress has directly spoken to the precise question at issue.” This first question should be “the end of the matter” if “the intent of Congress is clear,” because courts “must give effect to the unambiguously expressed intent of Congress.” At this stage, courts must employ “the traditional tools of statutory construction” to ascertain whether “Congress had an intention on the precise question at issue.”

It was the second step that would make Chevron a landmark case. If a court finds that “Congress has not directly addressed the precise question at issue,” then under Chevron the agency’s interpretation can become determinative. In this situation, Chevron instructed that a court should “not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Instead, courts should ask “whether the agency’s answer is based on a permissible construction of the statute.” If the answer is yes, Chevron required that the court defer to the agency’s interpretation.

It is this second step that Loper Bright eliminated. The premise underlying Loper Bright is that the second Chevron step is incoherent because there is always a single best reading of a statute. “In an agency case as in any other, … there is a best reading all the same—‘the reading the court would have reached’ if no agency were involved.” As the majority put it, “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning.” And if that is so, then it “makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.”

Throughout the Loper Bright majority opinion, the court reiterated that Chevron was about who decides legal questions, not policy questions. “It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation.”

HOW UNMOORED ADMINISTRATIVE LAW IS FROM THE CONSTITUTION:

Facts Matter: CFPB Attempts to Use a Blog Post to Rewrite a 46-year-old Payments Statute (WESTON LOYD, 5/30/24, CBA)

Remarkably, the CFPB asks the court to rewrite the plain language of the Electronic Fund Transfer Act, and effectively reverse decades of settled law. By issuing the blog post, the CFPB presumably would apply this new “rule” to the industry at large.

Key Findings

The Electronic Fund Transfer Act and the implementing regulation, CFPB’s Regulation E, clearly excludes Wire Transfers.

Yet the CFPB now asserts that wire transfers initiated via electronic means are covered under Regulation E (rendering Regulation E’s exclusion meaningless).

The CFPB’s new interpretation of Regulation E would reverse decades of court decisions as well as the CFPB and Federal Reserve’s own prior regulatory filings.

Attempting to stretch electronic payments laws beyond their bounds is not a viable solution to address scams and fraud. Scams and fraud are serious, interdisciplinary problems. The financial services industry is working with stakeholders across other private sector industries, but need the CFPB and other agencies to commit to collaborating thoughtfully and earnestly in order to reduce the risks consumers face from scams and fraud.

THE SECOND RULE OF TEXTUAL CONSTRUCTION…:

The Supreme Court’s January 6 Decision Was a Win for Progressive Protesters, Too (Jeremy Schulman, 6/30/24, MoJo)

In an amicus brief filed before the case was argued, a group of right-wing lawmakers made the rather ominous point that progressive protesters disrupt government events frequently. The Biden administration, they noted, hadn’t used the obstruction law to prosecute anti-Israel protesters who “occupied Capitol buildings to advocate for Congress to back a ceasefire in Gaza” or demonstrators who “interrupted Representative Jim Jordan’s House Judiciary
Committee field hearing” in a New York federal building. Nor, the lawmakers noted, had the Trump administration attempted to use this law against “the scores of protestors arrested for interfering” with Brett Kavanaugh’s Supreme Court confirmation hearings in the Senate.

Those protests were in no way comparable to the travesty of January 6. But that isn’t the issue. What that amicus brief makes clear is that if the DOJ’s interpretation of the obstruction law had been upheld, there would have been little stopping a future Trump administration from wielding its 20-year prison terms against political dissidents. Thankfully, the Supreme Court just made that a lot harder.

…words mean things.