Brace for new complications in big tech takedowns after Supreme Court upended regulatory rules
- Reference: 1719878768
- News link: https://www.theregister.co.uk/2024/07/02/supreme_court_chevron/
- Source link:
That deference, known as [1]Chevron deference , dates to 1984 when the court ruled in [2]Chevron v. Natural Resources Defense Council that the US Environmental Protection Agency could define ambiguous terms in government legislation, provided the agency was trying to apply the law as Congress intended.
Last week, the Supreme Court reversed that 40-year-old precedent with a decision covering two cases – [3]Loper Bright Enterprises v. Raimondo and [4]Relentless, Inc. v. Department of Commerce – about whether the US National Marine Fisheries Service could force US fishing vessels to pay the wages of federal observers in the absence of specific rules to that effect.
[5]
"The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled," the judges in the 6-2 majority [6]wrote [PDF].
The majority today gives itself exclusive power over every open issue – no matter how expertise-driven or policy-laden
Justice Elena Kagan, in a dissenting opinion joined by Justice Sonia Sotomayor, characterized the ruling as a judicial power grab, because it invites judges to make determinations previously trusted to government agencies and expert staff.
"In one fell swoop, the majority today gives itself exclusive power over every open issue – no matter how expertise-driven or policy-laden – involving the meaning of regulatory law," wrote Kagan. "As if it did not have enough on its plate, the majority turns itself into the country's administrative czar."
[7]
[8]
Justice Ketanji Jackson Brown recused herself from the Loper decision – presumably due to prior involvement with the litigation at the appellate level – but joined the dissenting opinion as it applied to the 6-3 Relentless decision.
The ruling has the potential to severely curtail the effectiveness of US regulators like the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) – and therefore to change the way the technology industry is regulated.
[9]
The FTC, for example, is engaged in fights with [10]Adobe over subscriptions, all the [11]big AI players on antitrust, and is being challenged for abolishing that mainstay of Silicon Valley, the non-compete agreement. With Chevron dismissed, that last one could prove to be a test case for the new order of business.
As for the FCC, many fear the whole issue of [12]net neutrality could be up for grabs – again – if control of the issue is given to judges. Telcos aren't fond of the FCC, and could be expected to contest every fine and reprimand, just to establish new rules.
Follow the money
The anglers in the Loper Bright case were, [13]according to the New York Times, represented by lawyers working for Americans for Prosperity – a group funded by petrochemical billionaire Charles Koch, a frequent [14]foe of regulation .
Patrick McLaughlin, director of policy analytics and a senior research fellow at George Mason University's Mercatus Center – [15]chaired and funded by Koch – framed the court's decision as a positive step from a governance perspective.
"Under Chevron deference, if an agency interpreted an ambiguous statute in one way, and others (presumably regulated entities) interpreted it another way, the tie would go to the agency – the courts would defer to the agency's presumed expertise," he wrote in [16]a post last week. "Now, in the post-Chevron world, regulatory agencies will have to justify their interpretation of ambiguous statutes without the advantage of deference to agencies in case of a tie."
[17]Supreme Court orders rethink on Texas, Florida laws banning web moderation
[18]Appeals court reanimates lawsuit accusing Meta of hiring bias against US citizens
[19]Musk burns bridges in Brazil after calling for senior judge to be impeached
[20]Amazon hopes to avoid labor regulation by simply abolishing national watchdogs
The National Taxpayers Union Foundation (NTUF) welcomed the Supreme Court's decision, citing its potential impact on the Internal Revenue Service.
"Today's decision will level the playing field for taxpayers and government agencies," declared Joe Bishop-Henchman, executive vice president of the NTUF, in [21]a statement . "Unreasonable IRS interpretations will no longer automatically win in court, which is as it should be, and reasonable interpretations will still have the force of law."
[22]
The Natural Resources Defense Council (NRDC) – the progressive environment group that lost in the 1984 Chevron case – warned the end of Chevron deference is a recipe for chaos, because judges all over the county will be called upon to interpret ambiguous laws.
"The Supreme Court seized for both itself and lower-court judges a policymaking role that the Constitution did not intend for them to have," the NRDC [23]argued last week. "The court stripped many federal agencies tasked with protecting public health, public safety, and the environment – including the US Environmental Protection Agency and the US Food & Drug Administration, to name just two – of their power to interpret the laws they carry out. Instead, federal judges now get to call the shots."
In bribery news, the Supreme Court also [24]ruled it's not against the law for officials, including lawmakers and judges, to receive gifts after making decisions or taking action. It's just a no-no to do that beforehand.
While the majority of the Supreme Court Justices offered reassurance that prior decisions based on Chevron – cited by about 18,000 federal court cases – won't automatically be invalidated by their decision, Kagan has doubts about that.
"The majority says that a decision's '[m]ere reliance on Chevron' is not enough to counter the force of [25]stare decisis ; a challenger will need an additional 'special justification,'" she wrote. "The majority is sanguine; I am not so much. Courts motivated to overrule an old Chevron-based decision can always come up with something to label a 'special justification.'"
Kagan expects that rules for the environment, healthcare, finance, transportation, and artificial intelligence in the years ahead will be reshaped by judicial preference.
"In every sphere of current or future federal regulation, expect courts from now on to play a commanding role," she wrote. "It is not a role Congress has given to them, in the [Administrative Procedure Act] or any other statute. It is a role this Court has now claimed for itself, as well as for other judges." ®
Get our [26]Tech Resources
[1] https://www.law.cornell.edu/wex/chevron_deference
[2] https://www.oyez.org/cases/1983/82-1005
[3] https://www.scotusblog.com/case-files/cases/loper-bright-enterprises-v-raimondo/
[4] https://www.scotusblog.com/case-files/cases/relentless-inc-v-department-of-commerce/
[5] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2ZoN7YJkH@veyFgedFP8LfwAAANQ&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[6] https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
[7] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZoN7YJkH@veyFgedFP8LfwAAANQ&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[8] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZoN7YJkH@veyFgedFP8LfwAAANQ&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[9] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZoN7YJkH@veyFgedFP8LfwAAANQ&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[10] https://www.theregister.com/2024/06/17/adobe_sued_cancel_fees/
[11] https://www.theregister.com/2024/06/06/nvidia_microsoft_and_openai_face/
[12] https://www.theregister.com/2024/06/06/telcos_net_neutrality/
[13] https://www.nytimes.com/2024/01/16/climate/koch-chevron-deference-supreme-court.html
[14] https://jacobin.com/2024/02/koch-network-rail-safety-regulations
[15] https://www.greenpeace.org/usa/fighting-climate-chaos/climate-deniers/front-groups/mercatus-center/
[16] https://thirdorder.substack.com/p/chevron-deference-is-dead
[17] https://www.theregister.com/2024/07/01/supreme_court_social_media/
[18] https://www.theregister.com/2024/06/27/lawsuit_appeals_meta_h_1b/
[19] https://www.theregister.com/2024/04/08/musk_burns_bridges_in_brazil/
[20] https://www.theregister.com/2024/02/22/amazon_nlrb_regulation/
[21] https://www.ntu.org/foundation/detail/ntuf-applauds-the-loper-bright-decision-and-end-of-chevron-deference
[22] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/publicsector&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZoN7YJkH@veyFgedFP8LfwAAANQ&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[23] https://www.nrdc.org/stories/what-happens-if-supreme-court-ends-chevron-deference
[24] https://jacobin.com/2024/06/supreme-court-corruption-thomas-kavanaugh
[25] https://www.law.cornell.edu/wex/stare_decisis
[26] https://whitepapers.theregister.com/
It's actually good.
Now Congress will have to do its job and *legislate.* It can't delegate its responsibilities to unelected bureaucrats who aren't accountable to the citizens. Regulation will be completely decided by elected representatives.
Will this cause short-term problems? Probably. But in the long term, it keeps our country safe from ever-increasing levels of bureaucracy.
In what universe was it OK for an agency to decide the people it serves must pay its wages directly? That's like cops collecting protection money on the streets...
Re: It's actually good.
I get that in theory ensuring rules are set by elected lawmakers and adjudicated by judges is a fair thing.
But in practicality, can the court system really handle the load? Can watchdogs really afford to enforce rules if they're just going to be challenged in court every time? Can we expect lawmakers to pass detailed and technically correct legislation all the time? Isn't deferring to scientists and experts a fair thing, too, with parameters set by Congress?
Bear in mind the Supremes got nitrous oxide [1]confused with nitrogen oxides in their ruling :( Baking those kinds of mistakes into law could have quite disastrous effects.
C.
[1] https://newrepublic.com/article/183285/supreme-court-chevron-gorsuch-nitrous-oxide
Separation of Powers
Chevron Deference deliberately broke the Separation of Powers.
The Court gave the Executive Legislative power AND Judicial power.
Essentially, within the general umbrella scope of any given legislation, Chevron Deference gave the unelected public servants the same power as Rome gave its emergency Dictators. But not for 1 year: permanently.
Re: Separation of Powers
Separately, it's concerning that the article spins misleadingly, or that [1]Thomas is extraordinarily unaware of basic legal & civil policy principles .
For example, it's misleading to elide key facts. Eg, leaving out that the fishing company Loper Bright Enterprises was being charged over US$ 700 per day for Federal monitoring, and that the original Federal law mandating monitoring did NOT intend let alone authorise fees, but 37 years later the National Marine Fisheries Service unilaterally changed the law. Under Chevron Deference there is no appeal.
Loper is a family company, not a giant multinational conglomerate. The unelected public servants unilaterally legislated to drive-out NON giant multinational conglomerates.
And to close with these quotes as key takeaways of wicked hijack by the Judicial Branch is just boggling:
> a role this Court has now claimed for itself
> judges all over the county will be called upon to interpret ambiguous laws
This is --along with ambiguous facts-- literally and precisely their JOB, their PURPOSE, their civil FUNCTION.
[1] https://www.law.cornell.edu/wex/separation_of_powers
Surely it is an undoubted universal given that ....
.... with particular and peculiarly specific regard to AI 2 and ITs LLLLMs, [Advanced IntelAIgents and Information Technologies Learned Large Language Learning Machines], there can never ever be a valid claim of human Earthly expertise to justify and support the following bodge job .....
"Under Chevron deference, if an agency interpreted an ambiguous statute in one way, and others (presumably regulated entities) interpreted it another way, the tie would go to the agency – the courts would defer to the agency's presumed expertise," he wrote in a post last week. "Now, in the post-Chevron world, regulatory agencies will have to justify their interpretation of ambiguous statutes without the advantage of deference to agencies in case of a tie."
All humanity can do is to share their experiences of the unsually delivered benefits and consequences of such a tempting imponderable and untouchable difficulty as any expertise is solely in the possession of the otherworldly and extraterrestrial. Any claim for such to be otherwise would clearly be a wanton speculative extra territorial land grab in/of a real virtual domain AI designed to be both free of and deadly dangerous to covetous trespassing humans. ... for an Alien Bug-Free Live Operational Virtualised Environment Zone .... with more than just a few more Brave New More Orderly World Ordered Worlds to boot and reboot.
No surprise. This is just a way for the corporate camel to put its nose under the justices robes.
In the last few years the corporatists have been flooding the courts with amicus briefs - really just lobbying for their positions. This removes the impediments of the expertise of the regulatory staff to point out problems in these briefs.
There are so many good discussions about how this will eviscerate almost all regulation in the US. One has to wonder who is hoping for a totally non-functional government.