Republican Leaders Call on FCC to Address End of Chevron Deference
The End of Chevron Deference: A New Era of Regulatory Oversight
On July 17, 2024, Cathy McMorris Rodgers, Chair of the House Committee on Energy and Commerce, and James Comer, Chairman of the House Committee on Oversight and Accountability, sent a letter to FCC Chairwoman Jessica Rosenworcel highlighting the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo. Loper Bright ended the longstanding doctrine of Chevron deference, a principle that has guided judicial review of administrative agency interpretations for nearly four decades, marking a pivotal shift in the judiciary's approach to agency interpretations of federal statutes. The Republican Committee Chairs call on Chairwoman Rosenworcel to identify actions that the FCC has taken under her leadership that may be impacted by the Supreme Court’s recent decision.
Understanding Chevron Deference
For those unfamiliar, Chevron deference originated from the 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. In a unanimous decision, the Supreme Court mandated that courts defer to a federal agency's interpretation of ambiguous statutory language, assuming the agency’s expertise in its respective domain. While this deference was intended to ensure that technical and specialized matters were addressed by those most qualified, it also led to what critics have termed the “Administrative State,” where agencies wield significant power over regulatory interpretations with only limited judicial review.
The Supreme Court’s Ruling in Loper Bright
The Supreme Court’s decision in Loper Bright explicitly overrules Chevron deference, establishing that it is the judiciary's role to interpret the law, not the agencies'. This ruling reaffirms the judiciary's responsibility, quoting the landmark decision in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is.” This decision underscores a significant shift in conservative judicial opinions that has occurred in the past decade and the current commitment to limiting what is perceived to expansive regulatory power that agencies have accumulated over the years.
The late Supreme Court Justice Antonin Scalia, largely considered the godfather of the modern conservative judicial movement, began his service on the Supreme Court with repeated, full-throated endorsements of Chevron, repeatedly talking publicly about the importance of judicial deference to regulatory agencies to make it possible in our modern society for federal agencies to effectively administer the laws, particularly with the rapid pace of innovation. For example, in 1989, in describing the rationale for Chevron he wrote that “Broad delegation to the Executive is the hallmark of the modern administrative state; agency rulemaking powers are the rule rather than, as they once were, the exception; and as the sheer number of modern departments and agencies suggests, we are awash in agency ‘expertise.’” Thus, he concluded that Congress preferred to allow agency to interpret (and reinterpret) statutes, providing more flexibility as events changed, rather than relying on the Supreme Court and the judicial process to result in a single interpretation that could not be changed without further legislative action.
Indeed, in 2013, Scalia even surprised many by writing in City of Arlington v. FCC that Chevron deference applied even to the fundamental question of whether the agency has jurisdiction over a particular matter, an area where many believed that the agency’s self-interest in expanding their jurisdiction should carry little weight.
Despite Scalia’s continued embrace of Chevron as a practical necessity for today’s modern society, his successor on the Court saw Chevron as a tool for the administrative state to impose undesirable regulations with little Congressional involvement or judicial oversight. Justice Gorsuch, who filled Justice Scalia’s seat after his unexpected death, wrote multiple decisions that signaled his belief that Chevron should be overturned. For example, in 2016 while serving on the Tenth Circuit Court of Appeals, Gorsuch took the unusual step of both writing both the court’s opinion and a 23-page concurring opinion in Gutierrez-Brizuela v. Lynch. Gorsuch 23-page concurring opinion was devoted entirely to making an argument that the Supreme Court should overturn Chevron. When Gorsuch was nominated to the Supreme Court by President Trump the following year, it was clear that his concurring opinion in Gutierrez-Brizuela v. Lynch had served as a roadmap for conservative legal scholars advising President Trump on who to nominate for the post. And, since arriving at the Court, Justice Gorsuch has consistently led efforts to get others in the conservative majority to embrace his goal of ending Chevron.
Significance of the Letter from McMorris Rodgers and Comer
The letter from Cathy McMorris Rodgers and James Comer highlighting Loper Bright is seen as the next step in realizing the potential for Loper Bright to restrain the power of federal regulatory agencies. Their letter carries significant weight given their leadership roles in key House committees responsible for overseeing federal agencies and regulatory practices. McMorris Rodgers, as Chair of the House Committee on Energy and Commerce, oversees telecommunications and technology issues, while Comer, as Chairman of the House Committee on Oversight and Accountability, is tasked with ensuring government efficiency and adherence to the law.
Their joint communication underscores the seriousness with which the Republican leadership views the recent Supreme Court decision and its implications for federal regulatory practices. By directly addressing Chairwoman Rosenworcel, they underscore their belief that the FCC must be required to adhere to the new judicial standards set by the Loper Bright decision. They write that under Chairwoman Rosenworcel’s leadership that FCC has been “promulgating rules that significantly expand the power of the FCC beyond the boundaries set by Congress,” and that the FCC has enacted rules “based on overreaching interpretations of statutes enacted by Congress years ago, before the issues now regulated were even imagined.”
Call to Action for the FCC’s Chairwoman
The letter calls for Chairwoman Rosenworcel to provide detailed information regarding the FCC’s regulatory actions and interpretations since January 20, 2021. This includes:
Legislative Rules: Lists of pending judicial challenges, final agency rules, and pending rulemakings affected by the Loper Bright decision.
Adjudications: Lists of pending judicial challenges, final agency adjudications, and pending adjudications impacted by the ruling.
Enforcement Actions: Details of pending and concluded enforcement actions relying on interpretations previously supported by Chevron deference.
Guidance Documents: A list of significant interpretive rules and guidance documents issued by the FCC, detailing their economic and competitive impacts.
Judicial Decisions: A compilation of court decisions that relied on Chevron deference to uphold the FCC’s statutory interpretations.
Moving Forward
The end of Chevron deference marks a significant shift in the balance of power between the judiciary and federal agencies. It calls for a re-evaluation of how regulatory authority is exercised and underscores the importance of clear legislative guidelines. As we move forward, this decision will likely prompt a closer scrutiny of agency actions and a renewed emphasis on the separation of powers as outlined in the Constitution. As the committees overseeing the FCC, McMorris Rodgers and Comer pledge to draft clear statutes that delineate agency powers and ensure compliance with the Supreme Court’s directive.
