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By now you have certainly learned that the Supreme Court has done what many desired and few expected: it has overturned the Chevron doctrine. This is a massive change to administrative law in the United States, so we are doing a special edition of the Briefing with early links and analysis to help you make sense of what is going on.
First we turn to EPPC’s Ed Whelan, who is of course always invaluable on legal issues, and point you to his summary of the decision.
For an overview of the background of the decision, we recommend this article by Prof. Adrian Vermeule in the George Mason Law Review.
The presupposition is that Chevron is good for business, but it may or may not be. The New York Times quotes Nick Shipley, a former lobbyist for BIO and PhRMA and the founder of Cronus Consulting pointing out that advocacy groups can also use Chevron‘s increased opportunities for litigation to create new regulation. “Industry,” he said, “could be caught in the crossfire.”
One industry that might be impacted right away is crypto: the SEC’s attempts to regulate certain crypto companies, including Coinbase, the biggest US-based exchange, was based on its own (dubious) interpretation of its own doctrine. It will probably now be up to courts, and not the SEC, to decide whether cryptocurrencies are securities (regulated under the Securities Act) or currency, or something else.
More generally we are hearing from sources in the Fintech (financial technology) industry that they are very excited, because this gives them grounds to challenge all sorts of onerous rules.
According to Bloomberg Law, regulations that could come under fire quickly include auto emissions limits, bans on non-compete agreements, and broadband regulations.
When it comes to broadband regulations most likely to be affected by Chevron, one of them is so-called “net neutrality,” according to this thorough briefing from Ars Technica, and another common carrier regulations, according to an article in the Penn Law Review by Prof. Christopher S. Yoo.
Another regulation that could be affected is the FDA’s bans on vaping products, which has been based on its own, expansive interpretation of the Family Smoking Prevention and Tobacco Control Act, Tobacco Reporter writes.
R Street’s excellent energy analyst Josiah Neeley sketches out how Chevron might impact energy regulations put out by the EPA and the FERC. “[W]hile the demise of Chevron will delight many legal nerds, we shouldn’t overestimate its practical effect, at least in the short term. The fact that the Supreme Court had previously limited the doctrine means that getting rid of the rest of it will have a smaller effect. This is particularly true when it comes to environmental regulations like the Clean Power Plan. Likewise, the Court has been telegraphing an end to Chevron for several years, so agencies have begun to craft their rules in anticipation of a post-Chevron world. FERC, for example, had already all but stopped relying on Chevron as a defense in its own rulemaking.”
The Foundation for American Innovation is responding in a smart way: putting out a call for papers on what the post-Chevron landscape might look like.
The Competitive Enterprise Institute, which had filed an amicus brief in Loper Bright, is unsurprisingly celebrating, and suggesting further efforts in order to curb the power of the administrative state. First, the “Guidance Out of Darkness Act”, which would require a public access portal to all agency guidance documents, noting that although guidance from federal agencies is not legally binding, they often are in practice, and such guidance can be hard to access. Another funnily-named proposal is an ‘Abuse-of-Crisis Prevention Act’ which is not technically speaking legislation, but rather a framework of ideas designed to limit government overreach during national crises.
Meme of the Day
