The Supreme Court’s decision was that the federal regulators are kneecapped
The Supreme Court has ruled no deference for the Federal Communications Act: Two cases against Chevron in the NLTA and West Virginia
That decision has now been overturned. Although admin law is not always interesting, the fact is that agencies are the most important part of the government. The impact of Friday’s Supreme Court decision is still being discussed, but no one at The Verge can speak about it fully. The administrative state touches everything around us: net neutrality, climate change, clean air and water, and what scant consumer protections we have.
The Supreme Court ruled in the National Cable & Telecommunications Association case that deference should be applied to the FCC’s interpretation of the Communications Act if they classify ISPs in a way that would lead to lighter-touch regulation. “Brand X’s conclusion that the statute at issue is ambiguous made it highly likely that reviewing courts applying Chevron would uphold the net neutrality rules under review regardless of whether they were regulatory or deregulatory,” Yoo wrote.
The fishing industry brought two cases to SCOTUS, which took up the issue of Chevron deference this year. The plaintiffs challenged a federal rule that makes fishing companies pay for the cost of observers on vessels to monitor their operations, saying the National Marine Fisheries Service (NMFS) doesn’t actually have the authority to force them to pay because it’s not explicitly written into the fishery conservation statute. Lower courts applied the deference to the mandate.
In its decision in West Virginia, the Supreme Court weakened the doctrine of major questions in order to curb federal agencies’ regulatory authority. If Congress doesn’t explicitly allow a federal agency to regulate on an issue of national significance, that agency should not have the authority to do so.
Still, this is a formal turning point. The biggest policy stories at The Verge have centered around federal agencies. And for a long time, the kind of regulation that actually kept up with the pace of technology was mostly coming out of agencies. It is in the years to come that we will wonder, “Why isn’t anyone doing anything?” or “How can a court just unilaterally do that?” about issues that range from trivial to life-threatening.
Legal commentator Matt Ford wrote earlier this year that this interplay between the judiciary and industry was hardly an open secret, quoting Don McGahn — who would eventually become Trump’s White House counsel — at CPAC 2018 saying outright that “the judicial selection and the deregulatory effort are really the flip side of the same coin.”
Net neutrality is defined by the Federal Communications Commission to mean that internet service providers should be treated the same as other carriers. If the FCC is given the power to impose more regulation on the industry, they will be able to mandating that internet service providers aren’t unfairly block or throttle internet traffic. The goal is to keep internet service providers from controlling user information on the internet. According to the FCC, reclassing ISPs as common carriers will give it more oversight over internet outages and help it better secure internet infrastructure.
The FCC could argue that its authority to regulate broadband is the best way to look at the law, if it succeeds at the appeals level. There will be a difficult sell to the Supreme Court, which could make the final call on net neutrality.
The Information Technology and innovation Foundation, which receives funding from major internet service providers, including AT&T, said the decision made it much less likely that the FCC would go after Digital Discrimination. The FCC can fine telecom companies if they don’t give equal access to different groups without a good reason. “Now, the Commission will no longer have the refuge of statutory ambiguity to shield this overreach from judicial scrutiny,” ITIF director of broadband and spectrum policy Joe Kane said in a statement.
It was a coincidence that the Environmental Protection Agency made these decisions under very, very complicated statutes and that it was Chevron that was an environmental case. Lisa Heinzerling, a professor of law at the Georgetown University Law Center, said in a call to The Verge that it was very important.
Doniger said that the EPA wrote the rule in a way that anticipated the fall of Chevron so that it could survive legal challenges. But even with the EPA’s preemptively defensive crouch, its power plant rule “is incredibly legally vulnerable” to a rollback of Chevron deference, former Trump administration EPA administrator Andrew Wheeler said in a May episode of the Politico Energy podcast.
“The overall pattern here is clear — it’s not just in this decision — the court majority is on a rampage designed to make it harder for the government to protect us,” Doniger said.
But the FTC has already had to contend with trends cutting away at agency deference for quite some time. The noncompete rulemaking is already under scrutiny due to the Major Questions Doctrine, which is one of the reasons why the US Chamber of Commerce is challenging it. In Supreme Court cases, this principle is shown up, that Congress has to have clear authority for questions of great political or economic significance. The chamber argues in its lawsuit to block the FTC noncompete rule that the Supreme Court has invoked the Major Questions Doctrine “to reject similar attempts by administrative agencies to take unprecedented actions with vast economic and political significance based on nothing more than ambiguous and ancillary statutory text—particularly where the agency has never before pointed to that text as a font of regulatory power.”
Stephen Yale-Loehr, professor of immigration law practice at Cornell Law School, said that H-1B issues have had a hard time being overturned due to their narrow interpretations. Court review is possible now that people feel that the agency is too cautious with its interpretation of visa categories.
The desire to seek court review, however, will likely depend on an applicant’s location. Jonathan Wasden, a former government attorney whose firm specializes in visa cases, said that the overturn of the previous court decision will likely lead to a patchwork system. “I was hoping for them to create a framework, but right now it’s really in the eye of the particular judge that’s reviewing your case — which is great if you’re a litigant and an agency is acting silly, but for the government, it’s going to be a big problem,” Wasden told The Verge. There are 96 federal courts that have different opinions on how the statute is supposed to work.
In other words, the amount of recourse available to a person whose H-1B petition is denied by USCIS will depend largely on their location. The biggest challenge for the government will be as applied cases, or those who argue that the application of a particular statute or policy is unconstitutional. “There’s going to be a lot of individual litigants with compelling facts across the country on the exact same issue, and we’re going to see a variety of ways to resolve and interpret the law in those cases,” Wasden said.
The effects of this patchwork system will not be felt immediately, nor will they be felt evenly. “A lot needs to be worked out,” said Yale-Loehr, “and it will be confusing and complicated for several years.“
The Overturn of Chevron Means More Proposed Laws to Protect Workers from Heat Stress, and a New look at the Supreme Court
The overturning of Chevron may make it easier to challenge policies implemented by labor agencies going forward, including efforts to enact workplace safety regulations. The Biden administration has implemented a number of regulations related to workplace safety and worker treatment. The Equal Employment Opportunity Commission issued new guidance on workplace harassment for the first time in 15 years, the Department of Labor extended overtime pay to workers who make less than $60,000 a year, and there was also a regulation that allowed third parties on worksite inspections. The regulation raising the salary threshold for overtime pay, slated to go into effect on July 1st, faces multiple legal challenges from industry groups.
The DOL requires that employees be exempt from overtime pay if they make more money than the salary threshold, or if they do not work more than forty hours a week. According to Garden, business groups are more likely to win the case now that the DOL is not allowed to set a salary threshold.
If a judge thought the fair labor standards act was ambiguous, it would be up to the DOL to interpret it. The judges are free to decide what the best reading is. As is the case with immigration, different judges will reach different decisions about how to interpret regulations, which could lead to different regulatory schemes across the country.
Under Biden, the Occupational Safety and Health Administration (OSHA) has been working on regulations to protect workers from heat stress, but the proposal has faced strong opposition.
“It’s much harder for an agency to take big swings when it’s regulatory authority when it’s not going to get a layup when it goes into defendant,” Alexander MacDonald, a shareholder at Littler’s Workplace Policy Institute, told The Verge.
Rubin is a partner with the public interest firm Altshuler Berzon. “They still have to go through the same procedures for challenging it: a challenge goes to court, and it simply means that the courts will take a de novo — fresh look — at the statute,” said Rubin, whose firm has represented gig worker drivers and Apple employees who recently filed a gender discrimination lawsuit against the company. More consequential, Rubin adds, is the fact that the Supreme Court is divided on how to construe statutes and constitutional provisions. Rubin said that more litigation is likely if Chevron doesn’t allow it, resulting in more uncertainties, delays and inefficient practices. “It’s going to put an enormous burden on Congress and the courts, as well as the agencies, and it will certainly take months — if not years — to determine the actual impact.”
Intellectual property issues are probably the least significant in terms of impact and the lowest body count, but the fact that there is a deference to it in the administrative state may be an indication of the extent of the state.
The US International Trade Commission was applied to by an appeals court in 2015. The ITC does many things, but you likely last heard about it in 2023 when it ruled that the Apple Watch infringed on patents for pulse oximetry, resulting in a temporary ban for imports of the Apple Watch. Mark Lemley is a professor at the Stanford Law School and he stated in an email that he does think the demise of Chevron will affect patent law. The ITC wouldn’t be entitled to deference in its interpretation of patent law.
The Copyright Office issues exemptions for the section every three years, and this is one of the main reasons the agency rulemaking is important. These allow for the right to repair, unlock, and rip cellphones, DVD’s, electronic voting machines, and more. admin law is typically applied to the Copyright Office instead of being under the legislative branch. But earlier in June, an appeals court ruled these DMCA rulemakings were subject to the Administrative Procedure Act, the 1946 statute from which Chevron, Loper Bright, and the entire administrative state stems. The combination of this ruling and the death ofChevron may have the recurring triennial conflict in the courts as well.
Source: What SCOTUS just did to broadband, the right to repair, the environment, and more
Why the tech world hasn’t changed in five years, and why we shouldn’t have a big fish, but we can have more fish
Lemley notes that none of these are bad outcomes, and that most people have bigger fish to fry. No one is going to think, Well, on the one hand climate change will kill us all, but on the other hand, I have my Apple Watch.
The conservative judiciary is at the root of the empowerment of another entity that is beyond federal agencies. Article III courts do not always make the best decisions, even when it comes to relatively apolitical issues like software copyright. This shift in the balance of power will touch on issues both big and small, dire and inane in the years to come.
