Looking at Loper Bright More Broadly

Everything is right in my colleague Daniel Lyons’s recent post “Net Neutrality, and Other FCC Initiatives Jeopardized Post-Chevron,” covering practical upshots of the Chevron doctrine’s end at the Federal Communications Commission (FCC). A single turn of phrase he uses inspires me to wax theoretical about just how important the Supreme Court’s Loper Bright Enterprises v. Raimondo decision is. Along with quick takes on other agencies, I’ll impractically try here to unearth what this means for the workings of our government more broadly.

Loper Bright restored courts’ authority to determine the law, as opposed to giving agencies the power to decide what their authorizing statutes mean. This, Lyons rightly says, will pose challenges to “FCC initiatives that capitalized on ambiguous language to accomplish the agency’s policy objectives.”

He’s right, and it is amazing to observe that net neutrality regulation—the law governing the provision of internet service—has been a political ping-pong ball. It has absurdly changed (or threatened to change) with each change of political control in the White House. In what kind of banana republic does the law change simply with the election of one candidate or another? That is no “rule of law” country.

The last bit of Lyons’s phrase, “the agency’s policy objectives,” is a jumping-off point for understanding Loper Bright’s greater potential meaning. Because agencies should not have “policy objectives”! After Loper Bright, they will have less capacity to pursue policy objectives, which in our democracy are for Congress to inscribe in law. Agencies’ objectives are to administer what Congress has assigned.

The knock-on effect of agencies suffering a diminished policymaking role is substantial. I recently tweeted, perhaps credibly to others, about how President Joe Biden abandoned his centrist instincts to agency heads with aggressive anti-crypto agendas. The result has been an energized, moneyed community working to show Biden the door, a preference that will transfer to his Democratic-Party candidate-successor. Under Loper Bright, it should be less plausible to say the “Biden” Securities and Exchange Commission (SEC) because Biden appointees like SEC Chair Gary Gensler will have less capacity to implement their own, or the president’s, objectives.

Similar to many before, “Lina Khan’s” Federal Trade Commission (FTC) has pushed the limits of its authority. It will do so with much less confidence after Loper Bright. The agency’s long-standing efforts to shape markets in the area of data security and privacy, as opposed to its more neutral charge from Congress to police unfairness, will be on far weaker footing. The errant idea of FTC “common law” is diminished by the agency’s return to the status of coequal litigant when it brings actions against regulated parties. The FTC will have less ability to carry out plans not originating in what Congress has assigned.

With agency heads governed by law rather than acting as lawmakers, technical competence will rise relative to ideology in their selection. That means presidential appointments will matter less, and presidential elections will have slightly less importance relative to congressional elections. Even a slight change to the presidency’s massively supersized power is welcome.

It has been argued that Loper Bright arrogates power to the courts that they should not have. The same could be said of the server at a cocktail party who picks up an entire tray of hors d’oeuvres and walks around the room. Is the server a glutton? Congress has only to pick up that power and craft precise policies itself.

More likely, Congress will allocate lawmaking power to agencies explicitly. Congress is loath to make tough decisions, and it wallows in the opportunity to blame agencies for the costs of what it has permitted and encouraged. Happily, the Court has been showing signs of policing against that kind of delegation to agencies, as well.

There is a certain irony in the arguments of people allied with the Democratic Party rejecting Loper Bright because the decision is the more democratic of the options. The Chevron doctrine gave authority to unelected officials appointed by the officeholder over whom each voter has the least possible sway in our system. Post–Chevron doctrine, the power is not the courts’; it’s Congress’s. And Congress, while wildly dysfunctional and overburdened by a century of careless issue-expansion, is the more democratic branch of government.

We have a long way to go before our system is functioning well and as envisioned. As Lyons points out, other doctrines and habits continue to give agencies advantages and the leeway to pursue policy objectives distinct from those given to them by Congress. But reining in agencies like the FCC, SEC, and FTC makes possible a more vibrant and responsive democracy, which is important progress.