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Net Neutrality Implications

Major Questions Doctrine Has Largely Supplanted Chevron, Lawyers Agree

The major questions doctrine, as laid out in July’s Supreme Court decision in West Virginia v. EPA (see 2206300066), is likely to play an increasingly important role in future decisions on actions by federal agencies like the FCC, experts said Wednesday during an FCBA webinar. In a 6-3 decision, justices didn’t overrule the Chevron doctrine but appeared to further clamp down on agencies' ability to regulate without clear direction from Congress.

There’s some debate over when the major questions doctrine started, “but I think everyone agrees that it reached next-level prominence over the last two years,” said Morrison Foerster’s Joseph Palmore, former assistant to the solicitor general and deputy FCC general counsel. “We saw the Supreme Court invalidate several major regulatory initiatives based upon the major questions doctrine in a short period of time” and cite the doctrine explicitly for the first time in EPA, he said.

Palmore called the rise of doctrine “one of the most significant developments in administrative law in recent memory.” It has “major implications for many agencies,” he said.

The doctrine holds that when an agency “seeks to decide an issue of vast economic or political significance, a vague delegation from Congress is not enough,” said Davis Wright’s Thaila Sundaresan: “Rather, the agency must have clear statutory authority to decide the issue.” While the court “coined the term” major questions doctrine in EPA, the underlying principles weren’t new for the court, she said.

Sundaresan noted that in a concurring opinion in the EPA case, Justice Neil Gorsuch attempted to sketch out when the doctrine would apply. Gorsuch listed matters of “great political significance,” such as COVID-19 vaccine requirements or regulations covering “a significant portion of the American economy” or requiring significant investments, she said. Gorsuch also discussed an agency “intruding into an area that is the particular domain of state law,” she said. Keep in mind that only Justice Samuel Alito joined the concurrence and that Gorsuch said the list wasn’t intended to be “exhaustive,” she said.

We still don’t have a very clear sense” of when the major questions doctrine will apply, said Tejas Narechania, assistant professor-University of California, Berkeley, School of Law. That uncertainty increases litigation costs, he said. The guideposts offered by Gorsuch are vague, he said. Saying the doctrine applies in matters of great political significance “gives rise to incentives for regulated entities to try to politicize everything,” he said.

The doctrine “undermines the ability of agencies, and for presidents, to regulate flexibly and to respond to changing times,” Narechania said. “It aggrandizes judicial power at the expense of executive power,” he said: It’s less about “policing the line” between executive and legislative powers “and more about judicial power at the expense of the executive,” he said. “It’s easier to fix problems that agencies make than it is to fix problems that courts make,” he said.

Parts of the major questions doctrine will need to be fleshed out in other decisions, agreed Free State Foundation President Randolph May. It “really didn’t spring out of the blue,” but it’s now “more firmly embedded in our jurisprudence,” he said. “Separation of powers ensures that the power to make laws remains with the peoples’ elected representatives,” he said.

May noted courts have looked at the latest net neutrality orders by the FCC through the Chevron doctrine, but use of the doctrine “has now really receded” and has “been replaced to some extent” by the major questions language. In EPA, SCOTUS “gave pretty clear signal” that another net neutrality order would be treated as a major questions case, he said.

The first sentence of 2015 net neutrality order stated explicitly that the open internet “drives the American economy” and similar phrases appear throughout the order, May said. While 95% of what the FCC does is “an ordinary matter,” net neutrality would be “more difficult not to characterize this as a major question,” he said.

Other Precedent

Speakers on a second panel discussed other cases, particularly the 2016 SCOTUS decision in Spokeo v. Robins, under which plaintiffs alleging procedural violations of federal consumer protection statutes have faced an increasingly steep burden to demonstrate concrete injury, to establish standing and invoke the federal courts’ jurisdiction under Article III of the Constitution. In 2021 in TransUnion v. Ramirez, SCOTUS said plaintiffs who can’t demonstrate “concrete harm” aren't entitled to standing.

Carlton Fields’ Aaron Weiss said the 7th and 11th circuits caused the most confusion in Telephone Consumer Protection Act and related cases. “It’s very uncertain to practitioners where the line” falls in any TCPA case, he said: “It’s very tricky to navigate. I’m in the trenches as lawyer who has a lot of these cases, so it keeps us busy.”

It’s clear that the lower courts are super confused,” said Heather Elliott, professor at the University of Alabama School of Law. With higher courts increasingly focused on historical analogs, “it’s very difficult to parse present-day statutes and figure out what their historical analogs are,” she said.

Standing doctrine has long been criticized as being a morass of unpredictable outcomes” and Spokeo and related cases make things “a bunch worse, as far as I can tell,” Elliott said.

The Class Action Fairness Act of 2005 expanded federal courts' ability to exercise subject-matter jurisdiction over class-action cases filed in state court, Weiss noted. The law was intended to give federal courts more jurisdiction over multi-state cases, he said. But now, as a result of Article III standing questions, many cases are “winding up back in state court,” he said.