Need for Preserving Chevron Is ‘Especially Clear’ in 'Context' of AI Regulation: Amicus Brief

For nearly four decades, Chevron deference has provided a stable background rule against which Congress can legislate, said a U.S. Supreme Court amicus brief Thursday in Relentless v. Commerce Department (docket 22-1219) in support of the government’s efforts to preserve Chevron. The brief was filed by two Emory University School of Law student organizations -- the Emory Intellectual Property Society and the Law and Artificial Intelligence Society.

Congress has used its power to delegate narrow or expansive authorities to executive agencies “as it deems appropriate,” said the brief. Agencies “have duly exercised such authority subject to judicial oversight” under Chevron and congressional review, it said. Relentless and the tandem Chevron case, Loper Bright Enterprises v. Raimondo (docket 22-451), “will directly impact the way emerging technologies are regulated,” it said.

In support of the government respondents, both the Emory societies said the need for Chevron is “especially clear” in the context of AI regulation. AI is “ripe with uncertainty and risk,” but also “holds promise for advancing most every human endeavor, from medicine to the arts,” said the brief. Regulation will be critical, “both to protect the public and to support AI innovation such that it contributes to, rather than threatens, human welfare,” it said.

Corporations, nonprofits, researchers and "everyday citizens" are calling for AI to be regulated, said the brief. Whether Congress immediately legislates AI, courts “should continue to honor” congressional delegations of authority to executive agencies by reaffirming Chevron deference, it said. AI is developing quickly, posing a challenge for Congress, courts and regulators alike, it said. Congress “can pick up the pen and craft legislation tailored to the technology now, or it can choose to let agencies apply existing statutory frameworks to this new technology,” it said.

Whichever path is chosen, overruling Chevron would have “adverse effects” in the context of AI regulation, said the brief. Agencies have begun responding to the need for rules governing AI, while AI developers themselves “are some of the most ardent advocates of government regulation in the field,” it said.

The tech industry “acknowledges the dangers of unregulated innovation,” said the brief. Calls for AI regulation come from “private and public actors across the world,” including those developing the technology, it said. The need for AI regulation “is also recognized by a diverse array of think tanks and academics,” it said.

A “predictable regulatory framework” is critical “for keeping innovators in the field and ensuring their innovations positively serve humanity,” said the brief. Unpredictable regulation “may inhibit market participation,” it said. If companies can’t trust the regulations created by experts at executive agencies as an accurate representation of the government’s “will and authority,” they may simply abandon the field, it said.

To both protect the public and foster new technology, companies “must be able to trust agency regulations,” said the brief. That trust “would be undermined with the elimination of Chevron deference,” it said. The expert agency deference under Chevron “allows for consistency among courts throughout the country and lays the foundation for the stability and clarity necessary to regulate emerging technologies,” it said.