Why isn’t anybody doing anything? The flip side of the coin: the judiciary and the deregulatory effort are really the flip sides of the same coin
The Supreme Court’s decision risks bogging down courts with all these nitty gritty questions. They used to be able to punt much of that over to federal agencies, a move that’s out of the playbook now.
Chevron deference allows courts to defer to federal agencies when there are disputes over how to interpret ambiguous language in legislation passed by Congress. That’s supposed to lead to more informed decisions by leaning on expertise within those agencies. By overturning the Chevron doctrine, the conservative-dominated SCOTUS decided that judges ought to make the call instead of agency experts.
A senior advisor to the NRD Action fund and an attorney who litigated the 1984 case said that if the court threw out Chevron it would allow unaccountable judges to impose their policies over those of the political branches.
Since the New Deal era, the bulk of the functioning US government is the administrative state — think the acronym soup of agencies like the EPA, FCC, FTC, FDA, and so on. Even when Capitol Hill is not mired in deep dysfunction, the speed at which Congress and the courts operate no longer seems suitable for modern life. Ordinary people and industry look at the administrative state for an immediate answer to their problems. And since 1984, the administrative state largely ran on one Supreme Court precedent: Chevron USA, Inc. v. Natural Resources Defense Council (NRDC).
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 a policy that the Federal Communications Commission interprets as common carriers in Title II of the Communications Act. Reclassifying ISPs as telecommunications services, rather than information services, would let the FCC impose more regulations on the industry, including mandating that they can’t unfairly block or throttle internet traffic. It’s the idea of keeping the internet providers from controlling what users do or don’t see. The FCC wants to reclassify Internet Service Providers (ISPs) as common carriers and make them subject to more oversight in order to improve internet security.
There’s still some hope at the appeals level that the FCC could successfully argue that its interpretation of its authority to regulate broadband is the best way to read the law. But Schettenhelm told The Verge it will be a “tough sell” to a conservative and business-friendly Supreme Court, which could make the final call on net neutrality.
After the opinion came out, the Information Technology and Innovation Foundation (ITIF), a think tank that receives funding from ISPs including AT&T, Comcast, and Verizon, cheered the decision and said it makes it “even less likely that the FCC’s recent regulatory overreaches on Digital Discrimination and Title II for the Internet will survive judicial review.” ITIF said the FCC’s November 2023 digital discrimination order — which allows the agency to fine telecom companies when they fail to provide equal connectivity to different groups without a good reason — could also be in danger. ITIF director of broadband and spectrum policy Joe Kane said the Commission will no longer have a refuge of statutory ambiguity to shield their overreach from judicial scrutiny.
“It’s no coincidence that Chevron itself was an environmental case … especially for an agency like the Environmental Protection Agency that makes these highly technical, highly scientifically based decisions under very, very complicated statutes. The professor of law at Georgetown University Law Center told The Verge in a call before today that Chevron was very important.
Doniger said the EPA wrote the rule in a way that would allow them to be able to survive legal challenges. The power plant rule is vulnerable to a roll back of Chevron deference even though the EPA has a defensive crouch, according to Andrew Wheeler.
“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.
The business community has been critical of Khan and his methods, most recently with a rulemaking banning noncompete agreements in employment contracts. That action relies on FTC interpretation of its authority to allow it to take action in this area, the kind of thing that questions agency deference.
“In the past, employers have had a hard time overturning narrow interpretations of H-1B issues because of Chevron deference,” Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School, told The Verge. “Now, however, people who feel that the agency is too stingy in its interpretation of various visa categories may be more likely to seek court review.”
The desire to seek court review will be dependent on the location of the applicants. Jonathan Wasden, a former government attorney and owner of the firm Wasden Banias, said that the overturn of Chevron will likely cause a patchwork system. It’s in the judge’s eye, and it’s great if you’re a litigant, but for the government, it’s going. There are 96 federal courts that have different views of the statute.
Instead of relying on a single framework across the country, USCIS will pay more attention to where an application is located to determine how statutes will apply to them. Wasden said that an agency that already is challenged is going to be tough.
The effects of this patchwork system will not be felt immediately, nor will they be felt evenly. It will be difficult for several years, says Yale-Loehr, because there is a lot that needs to be worked out.
A fresh look at the overturned Chevron overturned rule restoring fair workplace safety under the white-collar overtime exempt status
The overturning of Chevron may make it easier to challenge policies implemented by labor agencies going forward, including efforts to enact workplace safety regulations. Regulations related to workplace safety have been put in place by the Biden administration. This year alone, the Department of Labor extended overtime pay to workers making below $58,656, announced a regulation allowing third parties on worksite inspections, and the Equal Employment Opportunity Commission issued new guidance on workplace harassment for the first time since 1999. The regulation raising the threshold for overtime pay faces legal challenges and is expected to take effect on July 1st.
“The DOL’s long-standing approach to whether an employee is ‘exempt’ from overtime under the ‘white-collar’ exemption involves looking at both the amount of the employee’s salary, and their duties — so employees are entitled to overtime pay unless they earn more than the salary threshold and perform qualifying duties,” Garden said. Business groups have argued that the DOL isn’t allowed to set a salary threshold at all, and they are more likely to do so now that the case is over.
If a judge thought the fair labor standards act was ambiguous, it would be up to the DOL to interpret it. Now, judges can 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.
Proposed heat stress regulations have faced stiff opposition, and were being worked on by theOSHA under Biden.
“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.
The success of these challenges will be seen, said Michael Rubin, a partner with the public interest firm. “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 there will likely be far more litigation, without the benefit ofChevron deference. “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 will probably see the least impact and almost certainly the lowest body count, but the fact that Chevron deference is applicable to any of these issues at all may be illustrative of the sheer scope of the administrative state.
The Patent and Trademark Office had its interpretation of patent law applied to by an appeals court. “The PTO makes few substantive rules,” Rebecca Tushnet, a professor at Harvard Law School, wrote in an email. It will have less impact than the agency rulemaking.
But there is one notable part of intellectual property law where agency rulemaking matters quite a lot and happens in bulk: every three years, the Copyright Office issues exemptions for DMCA Section 1201. These cover the right to repair, unlocking cellphones, ripping DVDs for archival or educational purposes, taking apart electronic voting machines to test for security issues, and more. The Copyright Office falls under the legislative branch, rather than the executive, where admin law traditionally applies. 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. These DMCA rulemakings are already contentious, even when enclosed in the usually boring notice-and-comment process — but the combination of this ruling and the death of Chevron may have the recurring triennial conflict sprawling into the courts as well.
Big or Small? Where are we going from here? The case of the judiciary and the feds, and where do we stand? A note from Lemley
To be clear, none of these are necessarily bad outcomes — and as Lemley notes, most people “have bigger fish to fry.” No one is going to think that climate change is going to kill us all or that I have an Apple Watch.
Beyond that, the disempowering of federal agencies means the empowerment of another entity — and in this case, it is the increasingly conservative judiciary. Even when political issues like software copyright are involved, the Article III court doesn’t always make the best decisions. This shift in the balance of power will touch on issues both big and small, dire and inane in the years to come.