November 3, 2017

“Chevron deference” belongs in the “Not My Job!” Department

By Oliver J. Dunford Attorney

The United States government is, of course, divided into three branches: the Legislative, Executive, and Judicial. The legislature writes the law, the executive administers and enforces the law, and the judiciary settles disputes about the application and meaning of the law. In the beginning, therefore, Chief Justice John Marshall, on behalf of a unanimous Supreme Court, stated the obvious: “It is emphatically the province and duty of the judicial department to say what the law is.”

But over the last 100 years or so, the judicial department has voluntarily ceded this “duty” to the executive branch. Under the Supreme Court’s Chevron deference, when the meaning of a law is (supposedly) unclear, courts must defer to the interpretation adopted by the executive-branch agency charged with administering the law. In practice, then, when a private citizen faces a federal agency in court, the judge must put his thumb on the scales and treat the agency’s legal argument as definitive (so long as the agency’s argument is not totally “arbitrary” or “capricious” or “manifestly” contrary to the statute). Predictably, the judiciary’s “not my job” rule has encouraged federal agencies to claim more and more power (power that the Constitution gave to Congress and the courts).

Recently, the Federal Communications Commission (FCC) issued its (misnamed) “open internet” rule—through which the FCC rewrote the country’s internet law. The United States Court of Appeals for the D.C. Circuit applied Chevron deference and upheld the FCC’s “interpretation.” Now, numerous challengers have asked the Supreme Court to step in. PLF, joined by our friends at NFIB Small Business Legal Center and Southeastern Legal Center, filed a friend-of-the-court brief, and we encourage the Supreme Court to take this opportunity to reconsider its Chevron jurisprudence—and defend the First Amendment along the way.

Background: The FCC rewrites the law

The troubles here began in 1934, when Congress adopted a Communications Act to address AT&T’s (then) monopoly. In this Act, Congress called for strict regulations of common carriers, that is, companies that engaged in radio “transmission.” But “broadcasting” businesses—which disseminated radio communications—were exempt from the common-carrier regulations.

Congress amended the 1934 Act in 1996 expressly to “promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.” Congress found that the “Internet and other interactive computer services have flourished to the benefit of all Americans, with a minimum of government regulation,” and it therefore adopted as the “policy of the United States” the preservation of “the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”

Accordingly, Congress maintained the longstanding distinctions between (1) basic “transmission” or “telecommunications” services and (2) “enhanced” or “information” services (defined as the “offering” of “information via telecommunications”). And as it did in 1934, Congress again applied common-carrier regulations only those who provided “telecommunications services.” Not surprisingly, then, the FCC itself treated ISPs (which provide “information” services) as exempt from the common-carrier regulations.

A decade later, however, under sustained political pressure from the Obama White House—even though the FCC is supposedly “independent” of the executive branch—the FCC reversed itself and decided that ISPs do in fact provide “telecommunications” services and are therefore subject to the onerous common-carrier regulations. Through its open-internet Order, the FCC may direct not only how ISPs provide internet services, but also, how ISPs run their businesses. In the words of Ajit Pai, an FCC Commissioner who dissented from the Order, the FCC gave itself “the power to micromanage virtually every aspect of how the Internet works.”

The FCC’s action violates the Constitution’s Separation of Powers Doctrine

In our brief, we explain that the Constitution’s exclusive grants of power to the three separate branches do not allow an executive-branch agency like the FCC to claim vast, legislative powers.

As the Supreme Court has repeatedly stated, the “ultimate purpose of th[e] separation of powers is to protect the liberty and security of the governed.” Therefore, the Framers established a government of divided powers. The legislature is vested with the power to establish law—that is, “generally applicable rules” adopted “only through the constitutionally prescribed process.” The Executive Branch, including “independent” agencies like the FCC, is obligated solely to administer and enforce duly enacted law. And disputes concerning the meaning and application of the law are vested exclusively in the Judicial Branch.

Unfortunately, despite these clear lines, the Supreme Court has regularly approved of Congress’ delegating “sweeping” power to administrative agencies. The FCC here, by effectively rewriting a law that was duly enacted by Congress, shows the breadth of power that the Supreme Court has allowed administrative agencies to assert.

The FCC’s power-grab here is unfortunately another example of administrative overreach. As Chief Justice Roberts explained a few years ago, the “accumulation of [] powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government. … [T]he danger posed by the growing power of the administrative state cannot be dismissed.”

We hope the Supreme Court agrees to hear this case and restore the proper balance among the separate powers of our federal government.

The FCC’s Order also violates the First Amendment

In addition, the FCC’s rule violates the First Amendment. The Supreme Court has made it clear that the First Amendment protects not just the right to support speech that we agree with, but also the right not to support speech that we don’t agree with. For example, the Court famously protected a New Hampshire family’s right not to display “Live Free or Die” on their license plate, since forcing them to display the motto would have violated their “right to avoid becoming the courier for [a] message” with which they disagree. But under the D.C. Circuit’s reasoning, private businesses who transmit the speech of others don’t have this right. Even though the FCC’s rule forces Internet Service Providers to transmit speech they disagree with, the court held that this is not a First Amendment violation. Under the court’s reasoning, the owner of a printing press could be forced to print a pamphlet he opposes, the owner of a private billboard could be forced to display an advertisement against her beliefs, and the owner of a bookstore could be forced to display a book he wants no part of. As our amicus brief explains, individuals do not forfeit their First Amendment rights just by owning a business that facilitates speech. The Supreme Court should grant review of this case to correct the D.C. Circuit’s dangerous precedent.

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