The Internet as we know it may soon become unrecognizable. That’s because the freewheeling “network of networks” soon will be regulated by bureaucrats. The D.C. Circuit court last month upheld the Federal Communications Commission’s (FCC) “net neutrality” rules, which treat Internet service providers (ISPs) like old Ma Bell.
By prohibiting prioritization of online traffic, the FCC rules will deter network infrastructure investment and innovation, as the Internet becomes governed as a utility. The result? Slowed broadband development, crushed startups, and protection from competition for big Internet companies. How did we come to this?
In deciding this case, the court relied on a doctrine known as Chevron deference that gives agencies wide latitude to interpret ambiguous legislation. Unsurprisingly, agencies have used this to expand their powers. Thus, it has become a real threat to the functioning of our republican constitution. Congress needs to overturn it.
Chevron deference, named after a 1984 Supreme Court case[law.cornell.edu], is reinforced by another doctrine called Auer which says that courts should defer to agencies for the interpretation of agency-drafted rules. Combined, these doctrines have shifted a massive amount of power away from the legislative and judicial branches to the executive. That means anyone who brings a complaint against an agency knows the dice are already loaded in the agency’s favor.
The power Chevron and Auer give agencies was evident in the FCC decision. The Telecommunications Act of 1996 says that the Internet shall remain “unfettered by Federal or State regulation,” which strongly suggests that Title II of the Communications Act of 1934 (the Ma Bell option) should not apply to ISPs. In fact, this is how the FCC read the Act from 2002 to 2015—an interpretation the Supreme Court ratified in its 2005 opinion in NCTA v. Brand X Internet Services[caselaw.findlaw.com].
But now, the FCC has simply waved aside these restrictions on its power, effectively rewriting the law, while the court deferred to the agency’s interpretation that it could do so.
While these doctrines reflect a genuine judicial concern for a lack of expertise in the courts, they’re dangerous to democratic accountability because they can give executive agency bureaucrats the power to make new law.
For instance, in the 1995 case, Babbitt v. Sweet Home Chapters of Communities for a Great Oregon[oyez.org], the Supreme Court, citing Chevron, deferred to the Secretary of the Interior’s unilateral redefinition of the long-accepted meanings of “taking” wildlife to include unintentional harm to an endangered species, which greatly expanded the Secretary’s power and control over American landowners.
Auer, meanwhile, provides a perverse incentive for agencies to issue deliberately vague regulations they can interpret as they choose, thereby avoiding the notice-and-comment requirements of the Administrative Procedure Act for regulatory rulemaking.
A recent Fourth Circuit court decision, G.G. v. Gloucester County School Board[ca4.uscourts.gov],on how to interpret the word “sex” when it comes to bathroom access, may go so far as to allow agencies to effectively rewrite statutes by reinterpreting vague terms that appear in both a given regulation and its enabling statute. By shifting power to interpret law from the judiciary to the executive, this greatly reduces the people’s ability to redress grievances against agencies via the courts.
This expansion of administrative power at the expense of the legislative and judicial branches is blatantly contrary to the ideals of the American founding. In the seminal case Marbury v. Madison, Chief Justice John Marshall wrote, “It is emphatically the province and duty of the Judicial Department to say what the law is.” That is no longer the case.
A lot of the fault lies with Congress for writing ambiguous statutes that grant executive agencies broad powers to draft so much regulation. Thankfully, there is something Congress can do to fix the problem.
The Separation of Powers Restoration Act (SOPRA, H.R. 4768, S. 2724), sponsored by Rep. John Ratcliffe (R-Texas) and Sen. Orrin Hatch (R-Utah), represents a vital step in restoring the courts to their proper role as arbiters of statutory interpretation. SOPRA would amend the Administrative Procedure Act to require courts to conduct a de novo (from scratch) review of all relevant questions of law and regulation when they are subject to legal challenge.
Before Chevron, courts relied on agency expertise to guide their decision making, but did not cede to agencies their fundamental responsibility to interpret the meaning of statutes. SOPRA would restore that discretion.
Without such judicial discretion, agency bureaucrats will continue to exploit ambiguous statutes to expand their power—and courts will continue to nod through those power grabs. Unless Congress acts, the open Internet will be but the first casualty of our out-of-control regulatory state.
Originally posted to The Hill.