SpaceX has adopted similar tactics in its battles with federal regulators. After the National Labor Relations Board accused the company in January of illegally firing eight workers for criticizing Musk in an internal letter, SpaceX filed a lawsuit claiming that the agency’s structure is unconstitutional.
The overturn of Chevron In particular, this means that “we are clearly going to have more litigation,” says Berin Szoka, director of the nonpartisan think tank TechFreedom, based in Washington, D.C. For example, the FTC’s April decision Prohibition of non-compete clauses is likely at risk. Although the agency has not relied on Chevron In its enforcement actions over the past few years, the doctrine provided it with a level of deference in the courts when it came to rulemaking. “There’s a zero percent chance that argument will win now,” Szoka says.
Another decision that could be more easily challenged is the Federal Communications Commission’s decision, also in April, reinstating Obama-era net neutrality rules that were rescinded under the Trump administration. Net neutrality, advocates argue, is an important consumer protection principle that ensures service providers can’t give some types of traffic (for example, their own streaming services) better treatment than others. 500 page document The decision explicitly names Chevron as a statute that gives him the authority to reset the rules.
Szoka emphasizes that while the decision to revoke Chevron This is likely to create “confusion” in the lower courts, but it is not a death knell for court deference to regulators. Courts will now decide how much weight to give to regulators’ decisions (it could be a little or a lot), and it is possible that some of those cases will end up before the Supreme Court, which will further clarify the new rules.
In the event of a second Trump administration, the recent changes may even end up being beneficial to progressives, Szoka notes. If the Trump administration fills agencies with leaders who are loyal to the president and carry out his agenda, Szoka says, “I think you have to ask yourself whether they really want the courts to be deferred to those agencies.”
Meanwhile, Sawyer-Phillips says, other countries have already stepped forward to regulate tech companies in ways that affect American consumers. “Tying the hands of administrative agencies can have the effect of ceding regulatory authority over fast-moving tech industries to the European Commission on issues such as privacy, data portability, and access to and interoperability of digital platforms,” she says.
In fact, Sawyer-Phillips adds, the United States is falling behind the rest of the world on important issues like antitrust: “The United States invented competition policy—what we call antitrust—but not only are we failing to adapt to modern times, we are falling into political retreat.”
With the death of ChevronCongress could step in and try to legislate a comparable level of deference to regulators. However, there is no guarantee that such a strategy would succeed. “It is difficult for Congress to override Supreme Court precedent,” Vladeck says. “Congress could pass a law tomorrow that restores the Chevron rule, and the court would ignore it.”
According to Vladeck, with all the recent Supreme Court rulings undermining the power of the federal government and giving the courts more freedom, something fundamental has changed. “It’s now an imperial court,” he says.
