Supreme Court Deference to Agencies Shrinking as Net Neutrality Challenge Looms, FSF President Says

The Supreme Court may be moving in a direction of giving less deference to the Chevron doctrine and that could be bad news for the FCC as an appeal of the February net neutrality order moves forward, Free State Foundation President Randolph May said Tuesday in The Hill. In recent decisions, King v. Burwell, an Affordable Care Act (ACA) case, and Michigan v. Environmental Protection Agency, the court raised new questions about Chevron deference, the doctrine that if a reviewing court deems a statutory provision “ambiguous” and the agency's interpretation “reasonable,” an agency's interpretation is to be given “controlling weight,” May said. In rejecting the latest challenge to the ACA, Chief Justice John Roberts “refrained, at least explicitly, from relying on Chevron deference, despite acknowledging the statute's ambiguity,” May wrote. “While observing that Chevron's approach ‘is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps,’ he nevertheless declared that this was one of the ‘extraordinary cases’ in which the Chevron doctrine doesn't apply. Why not? Because, according to Roberts, it involves a question of such deep 'economic and political significance' that ‘had Congress wished to assign that question to an agency, it surely would have done so expressly.’" In the Michigan case, writing for the majority, Justice Antonin Scalia said the EPA may regulate power plants only if it concludes "regulation is appropriate and necessary," May said. “Scalia, while not questioning Chevron's applicability, determined that, ‘even under this deferential standard,’ the EPA's interpretation of the statute was unreasonable. Thus, Chevron did not carry the day.”