Why isn’t someone doing anything, or how does a court do something about it? The nitty-gritty case of the first Supreme Court ruling on net neutrality
The Supreme Court’s decision risks bogging down courts with all these nitty gritty questions. They used to be able to send most of that over to federal agencies.
That interpretation could come under threat, even as the FCC just recently voted to reinstate net neutrality after it was repealed during the Trump administration. “Overruling Chevron has the potential to change the tenor of the impending judicial challenge to the new net neutrality rules dramatically,” University of Pennsylvania Carey Law School professor Christopher Yoo wrote in an article published prior to the Supreme Court ruling. The prior judicial review pertaining to net neutrality has resulted in the consideration of Chevron.
“Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. In his opinion, Chief Justice John Roberts stated that courts do.
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. Congress and the courts do not seem suitable anymore for modern life, even when Capitol Hill is not in bad shape. Both industry and ordinary people look to the administrative state, rather than legislators, for an immediate answer to their problems. The administrative state has largely relied on a Supreme Court precedent.
This is a turning point. The most important policy stories at The Verge are about 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 will be in the years to come that we will question “Why isn’t someone doing anything?” or “How can a court do that?” about issues ranging 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.”
The Communications Act was used by the Federal Communications Commission to regulate internet service providers as common carriers. 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. The idea is to keep ISPs from controlling what information users do or don’t see on the internet. The FCC wants to make it easier for it to improve internet security by reclassifying internet service providers as common carriers.
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. It will be difficult to convince the justices of the Supreme Court, which could make the final call on net neutrality.
The Information Technology and Innovation Foundation (ITIF), which received funding from AT&T,Comcast, andVerizon, cheered the decision because it makes it less likely that the FCC will overreach on Digital Discrimination. 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. “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.
In an email to The Verge, Charlotte Garden, a professor of labor law at the University of Minnesota, said the decision to overturn Chevron will likely be “disruptive for workers’ rights.”
The EPA wrote the rule in a way that anticipated the fall of Chevron so that it can withstand legal challenges, Doniger said in a call with The Verge. The power plant rule is potentially vulnerable to a repeal of the deference, as Andrew Wheeler, the former EPA administrator, stated 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. For example, the noncompete rulemaking is already facing scrutiny under the Major Questions Doctrine, which is cited in the US Chamber of Commerce’s challenge. It’s a principle that’s shown up in Supreme Court cases that basically says Congress must grant clear authority for questions of great political or economic significance. The chamber argues in its lawsuit that the Major Questions Doctrine has been used by the Supreme Court to reject similar attempts by administrative agencies to take unprecedented actions with vast economic and political significance, where the agency has never before.
“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 location of an applicants will likely affect his desire to seek court review. Jonathan Wasden, a former government attorney whose firm, Wasden Banias, specializes in visa cases, said the overturning of Chevron will likely create a patchwork system. It’s in the judge’s eye and it’s great if you’re a litigant and agency is acting silly, but for the government it’s going. There are 96 federal courts that have different opinions on how the statute should work.
Going forward, instead of relying on a single framework across the country, USCIS will likely pay more attention to where an applicant is located to determine how statutes will apply to them. “For an agency that already is challenged, it’s going to be tough, because they’re just not that nimble,” Wasden said.
The effects of this patchwork system will not be felt immediately, nor will they be felt evenly. It will be confusing and complex for a number of years.
The Failure of the Equal Employment Opportunity Commission to Implement Fair Labor Standards Act Regulations Against Chevron after the Overturn of the Biden Administration
The overturn of Chevron may make it easier to challenge workplace safety regulations implemented by labor agencies. The Biden administration has implemented workplace safety and worker treatment regulations. 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 salary threshold for overtime pay faces multiple legal challenges from industry groups.
“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” — an argument Garden said is more likely to win now that Chevron is overturned.
“Under Chevron, if a judge thought the [Fair Labor Standards Act] was ambiguous, it would then defer to the DOL’s reasonable interpretation of that statute,” Garden said. “But now, judges are free to decide what they think the best reading is.” Different judges will make decisions about how to interpret regulations which can lead to different regulatory schemes across the country.
The Occupational Safety and Health Administration (OSHA) has been working on heat stress regulations in order to protect workers from increasingly high temperatures on the job, a proposal that has already faced resistance.
Alexander MacDonald, a shareholder at the Littler’s Workplace Policy Institute, told The Verge that it’s difficult to take big swings when you don’t have the power to do so.
According to Rubin, the success of these challenges is yet to be seen. “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’s likely to be far more litigation, without the benefit of chevron deference. It will be a huge burden on Congress, the courts, and the agencies, so it will take months to determine the 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 US International Trade Commission was applied to by an appeals court in 2015. You probably don’t know about the ITC’s ruling that blocked imports of the Apple watch due to patent violations, it happened in 2023. Mark Lemley, professor at the Stanford Law School, wrote in an email that he believed the demise ofChevron would affect patent law, but that most people would have bigger fish to fry. The ITC’s interpretation of patent law is not supposed to be subject to deference.
Every three years the Copyright Office issues exemptions for Section 1201, and agency rulemaking matters quite a lot. They cover a lot of things, from repairing cellphones, to ripping DVDs for archival or educational purposes, to taking apart electronic voting machines to test for security issues. admin law does not apply to the Copyright Office because it falls under the legislative branch. The Administrative Procedure Act was ruled to be a factor in the ruling by the appeals court. Even though these rulemakings are usually boring, the recent ruling and death ofChevron may lead to a renewed triennial conflict in the courts.
More Fish to Fry – Or How the Feds and Judiciary Branching Rules Will Affect Software Copyright Laws
Lemley notes that most people have bigger fish to fry and that none of these are necessarily bad outcomes. 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.
Beyond that, the disempowering of federal agencies means the empowerment of another entity — and in this case, it is the increasingly conservative judiciary. Article III courts do not always make the best decisions, even when it comes to relatively apolitical issues like software copyright. There will be issues both positive and negative in the years to come because of the balance of power shift.
