Supreme Court Decision in Loper Jeopardizes Net Neutrality, All Consumer Protections

No consumer protection is safe.

Today, the U.S. Supreme Court announced its decision in Loper Bright Enterprises v. Raimondo. The Court reversed the longstanding “Chevron doctrine” requiring courts to defer to an agency interpretation of the law. Instead, courts are now free to decide what meaning of a law it likes, without regard to the interpretation of the expert agency. The decision prevents Congress from fixing the problem by amending the Administrative Procedures Act by asserting that the Constitution requires judges to make their own interpretation of the law without deference to the agency (although judges may, if they wish, regard the agency interpretation as “guidance”).

The following can be attributed to Harold Feld, Senior Vice President at Public Knowledge:

“Today’s opinion is the latest in what Professor Mark Lemely dubbed “the Imperial Supreme Court” – a Court intent on elevating itself over the other two branches of government as the ultimate decider of policy rather than an interpreter of law. This opinion for the first time grounds judicial superiority over the legislative and executive branches by declaring that the Constitution requires judges to unilaterally decide the meaning of statutes written by Congress and entrusted to agencies. This overturns not only Chevron, but also pre-Chevron cases requiring deference to expert agencies.

“Justice Gorsuch’s unnecessary announcement in concurrence that Brand X, which declared broadband a Title I information service because of deference to the Federal Communications Commission, is safe, but that any reclassification of broadband to a Title II telecommunications service would not be entitled to such deference, essentially says the quiet part out loud: When agencies reach results the presiding judge likes, they stand. If not, judges will simply overrule agencies based on the judges’ preference for a different policy without regard to the law. Gorsuch’s results-oriented pronouncement is all the more stunning since the FCC did precisely what this opinion instructs them to do – apply the accepted interpretation of law to the facts of 2024 and how those facts changed since the FCC first visited the question in 2002.

”Whether a majority of judges will share Gorsuch’s naked disregard for their supposed rule of interpretation remains to be seen. But one thing is clear. From this day forward, no consumer protection is safe. Even if Congress can write with such specificity that a court cannot dispute its plain meaning, Congress will need to change the law for every new technology and every change in business practice. Even at the best of times, it would be impossible for Congress to keep up. Given the dysfunction of Congress today, we are at the mercy of the whims of the Imperial Court.”

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