Defining Deference Down
President Trump has promised to roll back the regulatory state, but he’ll need the help of a judiciary that has for decades deferred too eagerly to executive agencies. The Supreme Court has an opportunity to refine a doctrine known as Chevron deference, and a lucid dissent from the D.C. Circuit Court of Appeals deserves more attention.
Last week the D.C. Circuit declined to rehear US Telecom Association v. Federal Communications Commission in front of the full court, or en banc. A three-judge panel of the court last year upheld FCC rules that reclassified the internet as a public utility. Internet-service providers challenged the order for a dozen reasons, including procedural violations, as the agency proposed one rule and adopted another. More fundamental are constitutional objections: President Obama ordered the supposedly independent agency to act.
The 2-1 ruling for the FCC relied on Chevron deference, which says that courts should defer to agencies where the law is ambiguous. Yet the relevant statute stipulates that the web should be “unfettered” by regulation. The court cited one case on cable transmission as precedent for carte blanche deference, but that runs afoul of a 2015 ruling from the Supreme Court. In King v. Burwell, the High Court clarified that Chevron does not apply to matters of “deep economic and political significance.” That surely covers re-engineering a trillion-dollar network for expression and commerce.
The petitioners can appeal to the Supreme Court, and a dissent from Judge Brett Kavanaugh may tempt five Justices to take the case. He notes that over the past 25 years the High Court has held that “for an agency to issue a major rule, Congress must clearly authorize the agency to do so. If a statute only ambiguously supplies authority for the major rule, the rule is unlawful.” This is known as the “major questions doctrine.”
No one disputes that the FCC rule is major, or “one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States,” as the dissent puts it. Congress has debated but declined to pass legislation granting the agency authority, and Judge Kavanaugh writes that inaction “does not license the Executive Branch to take matters into its own hands.” In other words, Chevron has been misapplied.
The Supreme Court may decline to hear the case, as FCC Chairman Ajit Pai has announced plans to repeal the rules through regular rule-making. But Chief Justice John Roberts and Justice Clarence Thomas have in recent years signaled a willingness to revisit a theory that has morphed into unlimited deference. Justice Neil Gorsuch has said Chevron is “a judge-made doctrine for the abdication of the judicial duty,” and he’s right.
It may be months before the Court accepts or rejects the case, but one last piece of intrigue: Judge Kavanaugh has been writing dissents that seem to inform the High Court’s majority rulings. Chief Justice Roberts picked up Judge Kavanaugh’s 2008 reasoning in a decision on part of the Sarbanes-Oxley financial law, and the court again adopted his views from 2012 on greenhouse gas regulations. Perhaps the High Court will accept his invitation to revisit a doctrine that has long been abused.
Appeared in the May. 12, 2017, print edition.