In striking down net-neutrality rule, Sixth Circuit asserts newfound judicial supremacy

A panel of three GOP appointees used their post-Chevron judicial power, blocking a rule backed by the Biden administration that aimed to protect open internet access.

When the U.S. Supreme Court ended Chevron deference this past term — the longstanding federal judicial rule that courts deferred to reasonable agency interpretations of ambiguous statutes — most reports noted how the move could upend the way federal agencies run. Many of us wrote, more specifically, about how the decision was a power grab by the Supreme Court.

“In his decision for the court, [Chief Justice John] Roberts took power for the courts that has previously been shared among the branches under Chevron,” I wrote at the time.

On the second day of the new year, a three judge-panel of the U.S. Court of Appeals for the Sixth Circuit made it clear that they heard the message of that decision, Loper Bright Enterprises v. Raimondo, in their own unanimous decision striking down the Federal Communications Commission’s net-neutrality rule.

The FCC’s position on whether broadband internet service should be treated as a common carrier, preventing providers from taking certain actions distinguishing different services or websites, has flipped back and forth in recent administrations, with Democrats supporting and Republicans opposing net-neutrality rules. Those shifting positions proved key to Thursday’s Sixth Circuit ruling — in a way that was different in the wake of Loper Bright.

In Judge Richard Griffin’s opinion for three Republican appointees hearing the challenge to the net-neutrality rule, he declared that it was they — not the executive branch, with its elected president at the head — who should decide whether broadband internet service is more appropriately considered an “information service” or a “telecommunications service” for purposes of the Telecommunications Act of 1996. The difference is important because, in short, a telecommunications service is more easily regulated under the law as a common carrier.

“Applying Loper Bright means we can end the FCC’s vacillations,” Griffin, a George W. Bush appointee, wrote.

In the relatively brief, 26-page decision, Griffin declared that three judges sitting on an appeals court representing four states in the middle of the country were better suited to decide what a law in place since the mid-1990s means than the experts or political appointees at the FCC. He was joined by Judge Raymond Kethledge, another George W. Bush appointee, and Judge John Bush, a Trump appointee.

In their defense, that’s exactly what Roberts wanted. As Justice Elena Kagan wrote in her Loper Bright dissent, “The majority disdains restraint, and grasps for power.”

We saw the full force of that power grab on display at the Sixth Circuit on Thursday.

In a post-Chevron world, the very information that protected regulations now had become the poison that an appeals court used to take one down.

Shifting interpretations under different administrations are no long evidence that there is ambiguity in the statute and that multiple interpretations are reasonable, as was the way the world worked under Chevron. Instead, as Griffin wrote, this was now evidence of “uncertainty and convulsive change“ — quoting Justice Neil Gorsuch’s concurrence in Loper Bright — that justified the court coming in to “determine ‘the best reading of the statute’ in the first instance,” quoting from Roberts’s opinion for the court in Loper Bright.

Instead of the executive branch issuing its interpretation, subject to electoral constraints and judicial review (and with the benefit of those subject experts on the agency’s staff), a man who has been a judge since the 1980s wrote the Sixth Circuit’s opinion deciding the matter on Thursday — with only discretionary review from the full Sixth Circuit or the Supreme Court available to overturn that.

The opinion also highlights another peculiarity when pre-Loper Bright statutes are involved in litigation in a post-Chevron world: Today’s judges are going to tell us that they have determined “the best reading“ of a provision in a law that has repeatedly been declared ambiguous by other courts — perhaps even the Supreme Court.

The D.C. Circuit had done so repeatedly regarding various FCC rules surrounding broadband regulation, permitting rules issued by administrations of both parties as reasonable ones given the ambiguity of the law. On Thursday, however, Griffin declared that he and his colleagues on the Sixth Circuit had gleaned “the plain meaning of the statute” and concluded that “the FCC’s reading is inconsistent with the plain language of the Communications Act.”

Specifically, then, the Sixth Circuit held as to the most recent broadband rule, called the “Safeguarding Order” throughout the opinion:

[W]e conclude that the Safeguarding Order misreads the text of the Communications Act as it applies to Broadband Internet Service Providers and mobile broadband services. … [W]e hold that Broadband Internet Service Providers offer an information service and that mobile broadband is a private mobile service. Therefore, the FCC exceeded its statutory authority by issuing the Safeguarding Order.

There we go.

A final note about the political reality here: The 6-3 conservative majority at the Supreme Court — which will remain a conservative majority for the near future given Donald Trump’s return to the White House in 18 days — means that the Loper Bright change likely will only rarely hamper conservative administrations in the way it did the Biden administration on Thursday.

This is not new, but Thursday’s decision suggests that, as expected, Loper Bright likely will make it even more difficult for Democratic administrations to accomplish the goals that voters elect them to accomplish — let alone for progressive challenges to deregulation to succeed. In contrast, Loper Bright also likely will make it easier for conservative arguments against regulation — be they coming from an administration, a state, an organization, or a company — to succeed.

My purpose here was primarily to detail the regulatory implications of Thursday’s decision — because they are significant and will be seen over time across government. Other coverage will focus on the important internet-related implications of Thursday’s decision (and the fallout from the court’s interpretation of the law), however, and you should read those reports, too.