WASHINGTON — President Trump’s nominee for Supreme Court justice could be a friend to critics of what they see as FCC regulatory overreach.
Neil Gorsuch, as a judge on the 10th U.S. Circuit Court of Appeals, has challenged the Chevron doctrine, the result of a 1984 Supreme Court ruling under which courts have historically deferred to the subject matter expertise of federal agencies, like the Federal Communications Commission, when it comes to interpreting ambiguous statutes.
Gorsuch wrote in an August 2016 dissent that the “elephant in the room” in that case was that “Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers design.” Gorsuch is a judicial conservative who looks to the original intent of those framers to interpret the Constitution.”
In the 2005 Brand X decision, which was about the classification of Internet access service, the Supreme Court ruled that Chevron deference trumped an appeals court decision because that court had found the statute vague and, in such cases, the agency is due deference. The FCC had concluded that Internet access was an information service, not a telecom service subject to mandatory access.
Gorsuch wrote of the majority decision, “Courts are required to overrule their own declarations about the meaning of existing law in favor of interpretations dictated by executive agencies.” Justice Antonin Scalia, whose seat would be filled by Gorusch if he is confirmed, famously dissented in the Brand X case, a 6-3 ruling. A supporter of Chevron deference in general, Scalia said that in Brand X, the court had invented a novel approach whereby “judicial decisions [would be] subject to reversal by Executive officers,” such as the FCC.
Gorsuch’s view could be important, depending on how the challenges to the FCC’s Open Internet order play out or in other cases involving FCC interpretation of statute. The FCC argued in defending its original Open Internet order that that its authority to regulate ISPs as it did in the net neutrality rules stemmed from Chevron deference. ISPs disagreed.
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