At the end of its current term, the U.S. Supreme Court issued some decisions that absolutely jeopardize the validity of actions taken by federal agencies and essentially moves the interpretation(s) of those rules away from the executive branch agencies staffed with the subject-matter experts who devised the rules in the first place and towards the other two branches of government, legislative and judiciary. In Loper Bright Enterprises et al v. Raimondo, the Supreme Court chucked a 40-year precedent requiring that, in the event of ambiguous or unclear statutory language promulgated by Congress, courts should defer to the agencies where expertise resides for clarification and interpretation. The Chevron Doctrine, which was created by the high court in a 1984 case, stood for the concept that judges should defer to executive branch agencies when interpreting gaps and ambiguities in the laws they implement, so long as those interpretations are reasonable.
In the wake of the Loper Bright decision, which overturns Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., how to interpret ambiguous or unclear statutory language will be left to the two branches of government with the least experience in such matters: the legislative and judicial branches.
The Supreme Court not only placed many federal regulations in jeopardy, but further extended the periods of time necessary to resolve such matters because of the amount of time needed to complete either litigation, legislation or both.
The Loper Bright decision will likely delay and even stymie federal rulemaking, impacting the return of net neutrality at the very least. The fundamental issue of net neutrality is whether the internet is, in fact, a public utility, and should be regulated as such. If we learned nothing else during the pandemic, it's that the internet is surely a utility. Without governmental pressure -- note that I did not say “intervention” -- it is unlikely that widespread broadband deployment in rural and economically disadvantaged areas would exist to the extent that it does, and will continue to exist as it should. During the Obama Administration, net neutrality was first written into federal law. During the Trump Administration, it was abandoned. With the Biden Administration’s FCC, net neutrality was scheduled to return, albeit in what was likely to be a slightly different form.
However, after the Loper decision, if the power to reclassify broadband as a utility is shifted to the courts and/or legislatures, such deployment will likely be slowed, potentially to non-existent, as government funding sources fade slowly into the sunset. In addition, as a result of the time that it will take for anticipated litigation and/or legislation to play out the further rollout may simply slow to a crawl. After all, building out internet infrastructure is costly, and if the driving force for such deployment is the market, such investment may not make sense. Further, the politics of broadband deployment will become an even bigger problem than it already is.
Steve Rosen, a partner at Levine, Blaszak, Block & Boothby LLP put it this way: “Loper Bright will have a significant impact on the FCC's ability to regulate a rapidly evolving communications industry where new technologies are not clearly defined by the definitions and processes embodied in the Communications Act, which are by their nature broadly worded.” This dramatic shift not only moves decisions and implementation away from those who know the policies best, but it also lengthens the time it will take to accomplish legal adjustments to accommodate technology advancements.
The overturning of the Chevron case is receiving the most publicity, although another case may have an even greater impact because of its adjustment to the statute of limitations that entities have to sue over regulations that may affect the business. THIS IS HUGE because this case, Corner Post, Inc. v. Board of Governors of the Federal Reserve System, makes it easier for industries to challenge rules promulgated by federal agencies by extending the statute of limitations that companies can rely upon to sue the government not when the rules are enacted, but within six years of when the enterprise is affected by such regulation. This decision brightened the day of those who believe that enterprises should be regulated with the lightest possible hand, and disappointed those who believe that federal regulation is essential for maintaining a level playing field that protects consumers and others. It is a decision that is highly political and was decided, not surprisingly, along strictly ideological lines.
In both of these decisions, the U.S. Supreme Court has made significant moves to curtail the power (read: effectiveness) of federal agencies under the larger guise of making government “smaller.” Instead, it has chosen to relegate government involvement to those less equipped to understand the underlying technologies and certainly more prone to outside influence (read: lobbyists and political sentiment).
I am not, nor have I ever been, a member of a political party. However, I look at these court decisions and they do not reflect an independent judiciary, but one whose political leanings has interfered with not only the historical precedent that shapes our legal system, but with necessary expertise that shapes good governance as well.
