Last month’s 184-page net neutrality (0) opinion may be the most significant court decision in the telecom space since the Supreme Court’s Brand X decision (1) a decade ago. In a highly deferential decision, the DC Circuit court ratified the Federal Communications Commission’s (FCC) controversial reclassification of broadband Internet access as a Title II common carrier service, setting the stage for a broad regulatory agenda and permitting greater oversight over the Internet ecosystem. Given the stakes, it is unsurprising that the agency’s opponents refuse to throw in the towel, instead vowing to take the case to the Supreme Court (2). But will the high court take an interest in the case?
Court watchers know that the sages of One First Street accept only a small fraction of the cases vying for their attention each year. And in Rule 10 (3), the Justices have their own litmus test for whether a case is worthy of their attention. For the Justices, the policy stakes of a decision matter less than the legal stakes; cases where there is a split between the circuit courts that needs to be resolved, or where the case raises an important question of federal law that should be settled, are more likely to be heard.
Of course, the odds of the Court taking the case (or any case) are slim. And as Professor Christopher Yoo notes (4), there’s no circuit split here because the DC Circuit is the only court to have decided the scope of Title II. But if the Justices are interested in the case, there is one important legal question they may find worthy of their time, and it is rooted in the deference that was key to the agency’s victory: the scope of the “major questions” exception to the Chevron doctrine. I discussed this issue in a recent Perspectives (5) article for the Free State Foundation:
The Supreme Court announced a “major questions” exception in the 2015 Affordable Care Act decision, King v. Burwell. But its origins go back to the Food and Drug Administration’s efforts to regulate tobacco during the 1990s. In essence, the court explained then that Chevron’s assumption that Congress implicitly delegated to agencies the authority to resolve statutory ambiguities should not apply in cases involving “deep economic and political significance.” But the precise contours of this murky exception remain unclear. The DC Circuit’s Open Internet opinion provides an excellent vehicle for the Justices to provide greater detail and helpful guidance on a question that goes to the very heart of the rule of law and the role of the courts in our constitutional republic. To be specific, the question to be put to the Supreme Court goes to the role of the courts, as Chief Justice Marshall put it over 200 years ago in Marbury v. Madison, “to say what the law is.”
This article builds on an amicus brief that TechPolicyDaily co-blogger Gus Hurwitz drafted (and that I joined as one of the signatories) before the DC Circuit Court. The lower court punted on the issue, finding (probably correctly) that its hands were tied by prior Supreme Court precedent. But after King v. Burwell, the Supreme Court may not feel so bound, and the facts of this case seem tailor-made to fit the exception.
The FCC seems to have given the Justices a near-perfect case to discuss the issue further. Like Brown & Williamson, the agency reversed course to assert jurisdiction over a politically volatile issue. And like the Affordable Care Act’s insurance exchanges, the Internet is a matter of “deep economic and political significance.” The FCC has explained that the Internet “drives the American economy and serves, every day, as a critical tool for America’s citizens to conduct commerce, communicate, educate, entertain, and engage in the world around them.” Like the ACA, it involves “billions of dollars” and affects “hundreds of millions of consumers across the country and around the world.” Once relegated to a wonky corner of regulatory utility law, the question of how to regulate broadband providers has become a “policy decision” of considerable “economic magnitude,” as evinced by both the four-million-plus comments filed in the Open Internet proceeding and President Obama’s unprecedented decision to publicly pressure an independent agency into adopting it. Like the ACA, the far-reaching ramifications of the FCC’s jurisdictional power grab strongly suggests that this is “one of those cases” where the court should “hesitate before concluding that Congress intended such an implicit delegation” of authority to the agency.
Of course, no one can predict what the Justices will decide to do each term, and even if they take the case, they may affirm the agency as a matter of statutory interpretation (as the late Justice Scalia was inclined to do in his Brand X dissent). But the court has shown an increasing uneasiness with the scope of Chevron and other doctrines that give broad deference to administrative agencies. If the Justices wish to clarify the scope of their new exception or give their nascent administrative law counter-revolution a jolt, this would be an excellent place to do so.
You can download the full article here (6), which lays out the major questions exception in greater depth and argues for its applicability to this case.