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.
Am I mistaken in thinking that this new Sixth Circuit decision whittles down the government to two ruling bodies—the courts and the presidency? Trump declaims, Congress complains and the courts proclaim.
not at all. It is actually the opposite. The new rules on post chevron provide that the legislature must be more clear. Therefore, the onus is on the legislature to better describe if, how, and when something should be regulated. Sixth circuit is actually removing power from executive.
Easy to say when we all know the Republicans have made our national legislature impotent, chaotic, and incapable of governance, leaving power in the hands of judges who are seldom accountable or to an executive unaccountable since Trump v. the United States 7/1/24.
Trump v US and Loper Bright are the most egregious examples of judicial power grabs since the establishment of judicial review.
This is why we can't have immigration reform, healthcare reform, labor and wage reform, police powers oversight, communications reform, sane firearms management legislation, campaign finance and election reform, consumer finance reform, or Internet management reform.
Republicans get elected by saying government isn't a solution, it's the problem, and then when elected work assiduously proving themselves correct in a self fulfilling prophetic and coincidentally self dealing way.
But hey, I guess it doesn't matter as long as GOPMAGA majorities can manage to save America by ridding it of the greatest challenge it has ever faced; how to most quickly eradicate/exterminate all transgender, gender expansive, and Intersex Americans.
Good thing is that democrats can implement healthcare reform, labor reform, wage reform, tax reform, and immigration reform when they have control of the house. I wonder why they've never done that before.... Democrats did do a healthcare reform wherein they (*checks notes*) required most Americans to obtain for-profit insurance policies through employers. That is correct, it was democrats who forced millions of Americans into for profit risk adjustment schemes called insurance coverage. And then it was SCOTUS who let that law stand by rewriting the law to obfuscate the tax v penalty issue. Democrats are part of the problem too, not just republicans.
I would be much more interested in your thoughts if they did not seem to be as essay on how "our team" is good and "their team" is bad.
There is little or no data to support that the party affiliation of who appointed a judge has any affect on their rulings as a judge. Many believe that is rue for the current Supreme Court, but that seems to be based primarily on 2 or 3 decisions. And, although those decisions were criticized by many legal scholars, they were also complimented by many others Certainly, their party affiliation ides not show that their rulings were unwise or not supported by evidence.
Also, the fact that something is supported by Democrats and not Republicans also does not prove that the result of the court case is good or bad,. Democrats' views are, like Republicans, swayed by lobbyists and donors.
the issue of whether administrative agencies should have the power to decide on the meaning of ambiguous laws is a complicated one. Letting an agency made up of unelected people decide on the scope of their power, and possible making their power larger that Congress does not seem a good idea.
by describing this court decision in a way that strongly suggests that the judges were motivated by politics and not principal or even wisdom (yes, there are judges appointed by a republican that even liberals admit had wisdom--Earl Warren) is not correct of interesting to read or educational.
And, wisdom is not defined as being more subtle and profound that "agreeing with you".
it would have been much more interesting and educational if, instead of assuming that the decision was a bad one because the judges were appointed by Republican presidents and the Democrats supported a different result, you had described the impact of the decision on the internet, the legal arguments on both sides and the logic for the ruling. There was an articulated logic (that you said was "only" 26 pates long, and describing what it was would be interesting to all--or at least to me
Good to know your thoughts but, unfortunately, you both read a lot into this that isn't there — to give two examples, I never said that net neutrality being supported by Democrats and opposed by Republicans made it good or bad and I also never said anything about the effect of appointment party beyond naming it — and ignored things I did say — primarily, that this is a piece about courts' powers over regulatory decisions, not the effect on the internet. (I even wrote that other coverage would be covering that, and encouraged folks to read it.) Finally: This also is ongoing coverage at Law Dork, and the second link is to my coverage of the Loper Bright decision, so there is additional background information about the Supreme Court's treatment of this issue. At the end of the day, it sounds like you didn't want to read my report. Sorry!
Lol. Thanks, Jordan, for your constantly-dismissive-but-still-always-here commentary. I'm sorry that my analysis, having covered and written about the courts for 20+ years, is different than yours, but, it's still journalism. Sometimes I take positions when I've reached a conclusion on an issue, but you are welcome to — and often do — take a different position in light of the very information I provided. That's journalism!
Beyond that, I'm often just sending out breaking news as I take it in on social media — now primarily Bluesky — and then taking the time to analyze it and contextualize it, and put that down here. Sometimes here, posts are just the breaking news, but that's not as helpful and not what my readers want. It's not ever what I've done since originally launching Law Dork as a blog in 2003. If you want that, read a wire report.
Chris Geidner is reporting the truth, a rather rare occurrence these days, since corporate owned media generally only supports and reaffirms their owner's biases. If you can't appreciate Geidner's excellent reporting, then feel free to go elsewhere.
What good is net neutrality when a T1 provider can drop a website capriciously because they don’t like the content of it? Clearly the current policy is inadequate and inconsistent in its implementation.
With the current composition of the SCOTUS and the heavily Republican appointed (and sympathizing) lower court judges I have noticed that increasingly, the outcomes of decisions can be predicted better by considering the effects and implications of those decisions on the power of the courts in general and even more especially on the power of the SCOTUS than by attempting to look at the wording of the laws or precedent or arguments.
Trump may aspire to dictatorship, and Elon may aspire to being the power behind the "throne", but they will rule only so long as they are permitted and backed by the judicial branch. The real power in this country has been being gathered into the hands of six men and one woman in black robes who increasingly legislate from the bench.
Let me first acknowledge that I am not a disinterested party, as I am in the cable industry.
Let me also note that I share your concerns regarding Loper Bright representing SCOTUS's continued arrogation of increasingly unchecked power to itself.
That said, I think the NN case is probably about the worst example one could choose to make the case against Loper Bright. I think there's probably a much stronger case that the DC Circuit's upholding of the 2015 Title II reclassification was an example of Chevron deference taken too far, upholding something that wasn't a reasonable interpretation of an actual ambiguity in the law, in situation where agency expertise wasn't actually relevant to the question.
It's true that, as the court observed, through both Democratic and Republican administrations, Title I classification was deemed appropriate, and was in place, for 25 of the last 28 years. But perhaps even more important is to note that the switch to Title II classification was specifically results-driven: the FCC tried hard to maintain Title I classification while adopting NN rules, but eventually concluded it lacked the authority to impose a policy choice under Title I, so it decided to switch to Title II.
There has always been a quite strong argument that such was contrary to Congress's clear intention to treat internet access as a lightly regulated information service, at the time of the statute's adoption. (And of course, the fact that the FCC, both times, felt compelled to forbear the vast majority of regulations under the Title II is a practical testament to how Title II was a force fit, rather than there being a genuine question as to its suitability.)
But fundamentally, a politically-driven decision to reframe longstanding interpretation of the proper classification in order to enable imposition of a preferred policy is not exactly a product of technical expertise that warrants judicial deference. (Rather, it seems more like an agency arrogating unilateral power to itself--something the courts appropriately ought to check.)
Accordingly, I think this is just a really bad case to use to try to make the case against Loper Bright...
I get your argument, but I think you're missing my point. I'm not "mak[ing] the case against Loper Bright" here; I have done that previously. Here, I'm detailing what is going to happen — and how — as shown in this decision. And, while there might be all manner of arguments, such as those you make, about why the D.C. Circuit might have gotten the Chevron analysis wrong in the past regarding this issue, that's not what Griffin addresses today — and he almost gleefully says so with his, "Applying Loper Bright means we can end the FCC’s vacillations," comment.
Ok. But in that case, it seems to me that the point you are making here undermines the case you previously made against Loper Bright.
It's one thing to argue that it's a judicial power grab for the courts to deem that agencies deserve no deference at all, and all matters should be judged by the courts as matters of first impression. It's quite another to argue that in cases where every time the party in control changes, the interpretation of law flips, despite no change in law, facts, or circumstances.
If the latter is a frequent outcome of Chevron, it seems to me there's a very strong argument that the reversal of Chevron is not merely a power grab, but sound law, that's arguably even obligatory. It seems extremely hard to make a principled argument that ongoing interpretative "vacillations" with each change in administration is somehow beneficial. (Keeping in mind that, with Chevron--and Loper Bright--we are not talking about instances of ordinary regulatory decision-making, where Congress has clearly delegated some decision-making to an agency--which intentionally creates the possibility of politically-driven change over time--but, rather, cases of statutory interpretation, where lack of statutory clarity is the source of the changes.)
Where administrations of different parties simply go back and forth with dueling interpretations, there's clearly no agency expertise at play to defer to, and it seems strained at best to suggest that what is ultimately only a very slightly-more direct electoral accountability of agency appointments vs. judicial appointments outweighs the strong public interest in eventually reaching some stable understanding of what any given law means.
In those circumstances, would it not seem appropriate--or even obligatory--for the Court to rethink a policy that, after some 4 decades, has produced vacillations, rather than stability?
Sure, we all would prefer if such disputes got resolved in the direction we prefer. We all would be more comfortable if the courts were either dominated by jurists that hew reasonably to our own ideological beliefs, or where we perceive the courts as not being very ideological.
But it's really hard to argue that a judicial policy that produces frequent vacillations is better than one that produces stability.
So if the NN case is not an outlier where Chevron deference was previously improperly applied, but rather, is exemplary of a common occurrence under Chevron, then I think I have to reconsider the view that Loper Bright is primarily a power grab.
I find your comments somewhat humorous in that certainly since at least Marbury v. Madison, (and actually further back for judges in the American system as it evolved from England), judges were always charged with interpreting the law before applying it to facts. The idea that agencies in the executive branch would have the final say on the interpretation of a law if such interpretation was “reasonable“ is an upending of traditional judicial power that should have been overthrown, and I’m glad that it was.
The imperial presidency is out of control. It would be an abdication by, not an arrogation of power to the judicial branch to have left Chevron in place. I find your concerns particularly lacking in historical footing for a left-leaning commentator such as yourself to advocate for further expansion of the executive power by keeping Chevron in force.
If statutes are ambiguous, shouldn't Congress fix them? I agree with setting aside Chevron deference. I do not agree that this is a judicial power grab. Maybe I am naive but I think the Court is saying to Congress - you were elected to write clear laws, please do your job.
Under Republican control the House is minimally functional in passing anything. If they have to provide written detailed meticulous guidance on implementation, minimal will turn into zero. Maybe that is a good thing. They can spend their time kicking things down the road rather than legislating.
Thats the point and way it was designed. It should be hard to get things through congress. Therefore, local states should be making most of the rules/regulations because those are more responsive to those they represent.
The Administrative Law behind the creation of regulations mandates an extensive period of public review and comment. Will the Courts decide they don't have to follow this law?
I wonder that the real loser in Chevron, et al, is the tangible impermanence of settled law. Considering Net Neutrality as a concept, alone, by this former engineer working both sides of telecom and data, the net has never, ever been a neutral entity. Never. Ever.
But, regulation is necessary thing. The net—data and telecom—as a whole has been and should be a regulated thing.
Regulation provides the operational guidelines and limits to prevent unnecessary failure. I see the decision no different than removing structural support from heavily traveled bridge. As that decision ripples forward at-large, we're likely feel the uncomfortable rumbling of weakening and failure.
It seems that, today, the baby was (yet again) simply thrown out with the bathwater. The issues remain astronomically distant from disabuse. The primary change I see to have occured a gross repolarization due to bias alone. The court may as well have used ChatGPT to make its decision.
Nothing is settled, but a cupboard has been opened. Is it "the" cupboard or just one of many? Both sides have merely effed around. I'm not looking forward to this particular finding out phase.
This is not a ruling on Constitutional law, right? Congress could pass a statute with language that even the Sixth could not misunderstand. I don't hold out any hope for the Fifth, naturally.
Am I mistaken in thinking that this new Sixth Circuit decision whittles down the government to two ruling bodies—the courts and the presidency? Trump declaims, Congress complains and the courts proclaim.
Or perhaps the courts disdain …
https://t.co/WLjr9fZn5y
Besides, the Republicans in the House of Representatives are just too busy devouring themselves.
not at all. It is actually the opposite. The new rules on post chevron provide that the legislature must be more clear. Therefore, the onus is on the legislature to better describe if, how, and when something should be regulated. Sixth circuit is actually removing power from executive.
Easy to say when we all know the Republicans have made our national legislature impotent, chaotic, and incapable of governance, leaving power in the hands of judges who are seldom accountable or to an executive unaccountable since Trump v. the United States 7/1/24.
Trump v US and Loper Bright are the most egregious examples of judicial power grabs since the establishment of judicial review.
This is why we can't have immigration reform, healthcare reform, labor and wage reform, police powers oversight, communications reform, sane firearms management legislation, campaign finance and election reform, consumer finance reform, or Internet management reform.
Republicans get elected by saying government isn't a solution, it's the problem, and then when elected work assiduously proving themselves correct in a self fulfilling prophetic and coincidentally self dealing way.
But hey, I guess it doesn't matter as long as GOPMAGA majorities can manage to save America by ridding it of the greatest challenge it has ever faced; how to most quickly eradicate/exterminate all transgender, gender expansive, and Intersex Americans.
Good thing is that democrats can implement healthcare reform, labor reform, wage reform, tax reform, and immigration reform when they have control of the house. I wonder why they've never done that before.... Democrats did do a healthcare reform wherein they (*checks notes*) required most Americans to obtain for-profit insurance policies through employers. That is correct, it was democrats who forced millions of Americans into for profit risk adjustment schemes called insurance coverage. And then it was SCOTUS who let that law stand by rewriting the law to obfuscate the tax v penalty issue. Democrats are part of the problem too, not just republicans.
As always.
Elections have consequences.
I would be much more interested in your thoughts if they did not seem to be as essay on how "our team" is good and "their team" is bad.
There is little or no data to support that the party affiliation of who appointed a judge has any affect on their rulings as a judge. Many believe that is rue for the current Supreme Court, but that seems to be based primarily on 2 or 3 decisions. And, although those decisions were criticized by many legal scholars, they were also complimented by many others Certainly, their party affiliation ides not show that their rulings were unwise or not supported by evidence.
Also, the fact that something is supported by Democrats and not Republicans also does not prove that the result of the court case is good or bad,. Democrats' views are, like Republicans, swayed by lobbyists and donors.
the issue of whether administrative agencies should have the power to decide on the meaning of ambiguous laws is a complicated one. Letting an agency made up of unelected people decide on the scope of their power, and possible making their power larger that Congress does not seem a good idea.
by describing this court decision in a way that strongly suggests that the judges were motivated by politics and not principal or even wisdom (yes, there are judges appointed by a republican that even liberals admit had wisdom--Earl Warren) is not correct of interesting to read or educational.
And, wisdom is not defined as being more subtle and profound that "agreeing with you".
it would have been much more interesting and educational if, instead of assuming that the decision was a bad one because the judges were appointed by Republican presidents and the Democrats supported a different result, you had described the impact of the decision on the internet, the legal arguments on both sides and the logic for the ruling. There was an articulated logic (that you said was "only" 26 pates long, and describing what it was would be interesting to all--or at least to me
Good to know your thoughts but, unfortunately, you both read a lot into this that isn't there — to give two examples, I never said that net neutrality being supported by Democrats and opposed by Republicans made it good or bad and I also never said anything about the effect of appointment party beyond naming it — and ignored things I did say — primarily, that this is a piece about courts' powers over regulatory decisions, not the effect on the internet. (I even wrote that other coverage would be covering that, and encouraged folks to read it.) Finally: This also is ongoing coverage at Law Dork, and the second link is to my coverage of the Loper Bright decision, so there is additional background information about the Supreme Court's treatment of this issue. At the end of the day, it sounds like you didn't want to read my report. Sorry!
Are people really still doing this in 2025 lmao
Henry, if you consume Chris's posts as advocacy, rather than journalism, then it makes more sense when reading.
Lol. Thanks, Jordan, for your constantly-dismissive-but-still-always-here commentary. I'm sorry that my analysis, having covered and written about the courts for 20+ years, is different than yours, but, it's still journalism. Sometimes I take positions when I've reached a conclusion on an issue, but you are welcome to — and often do — take a different position in light of the very information I provided. That's journalism!
Beyond that, I'm often just sending out breaking news as I take it in on social media — now primarily Bluesky — and then taking the time to analyze it and contextualize it, and put that down here. Sometimes here, posts are just the breaking news, but that's not as helpful and not what my readers want. It's not ever what I've done since originally launching Law Dork as a blog in 2003. If you want that, read a wire report.
Chris Geidner is reporting the truth, a rather rare occurrence these days, since corporate owned media generally only supports and reaffirms their owner's biases. If you can't appreciate Geidner's excellent reporting, then feel free to go elsewhere.
Per curiam: “We say it’s spinach and we say the hell with it.”
Overturn Marbury v Madison. Stare decisis is dead.
https://t.co/WLjr9fZn5y
What good is net neutrality when a T1 provider can drop a website capriciously because they don’t like the content of it? Clearly the current policy is inadequate and inconsistent in its implementation.
With the current composition of the SCOTUS and the heavily Republican appointed (and sympathizing) lower court judges I have noticed that increasingly, the outcomes of decisions can be predicted better by considering the effects and implications of those decisions on the power of the courts in general and even more especially on the power of the SCOTUS than by attempting to look at the wording of the laws or precedent or arguments.
Trump may aspire to dictatorship, and Elon may aspire to being the power behind the "throne", but they will rule only so long as they are permitted and backed by the judicial branch. The real power in this country has been being gathered into the hands of six men and one woman in black robes who increasingly legislate from the bench.
Completely agree.
Let me first acknowledge that I am not a disinterested party, as I am in the cable industry.
Let me also note that I share your concerns regarding Loper Bright representing SCOTUS's continued arrogation of increasingly unchecked power to itself.
That said, I think the NN case is probably about the worst example one could choose to make the case against Loper Bright. I think there's probably a much stronger case that the DC Circuit's upholding of the 2015 Title II reclassification was an example of Chevron deference taken too far, upholding something that wasn't a reasonable interpretation of an actual ambiguity in the law, in situation where agency expertise wasn't actually relevant to the question.
It's true that, as the court observed, through both Democratic and Republican administrations, Title I classification was deemed appropriate, and was in place, for 25 of the last 28 years. But perhaps even more important is to note that the switch to Title II classification was specifically results-driven: the FCC tried hard to maintain Title I classification while adopting NN rules, but eventually concluded it lacked the authority to impose a policy choice under Title I, so it decided to switch to Title II.
There has always been a quite strong argument that such was contrary to Congress's clear intention to treat internet access as a lightly regulated information service, at the time of the statute's adoption. (And of course, the fact that the FCC, both times, felt compelled to forbear the vast majority of regulations under the Title II is a practical testament to how Title II was a force fit, rather than there being a genuine question as to its suitability.)
But fundamentally, a politically-driven decision to reframe longstanding interpretation of the proper classification in order to enable imposition of a preferred policy is not exactly a product of technical expertise that warrants judicial deference. (Rather, it seems more like an agency arrogating unilateral power to itself--something the courts appropriately ought to check.)
Accordingly, I think this is just a really bad case to use to try to make the case against Loper Bright...
I get your argument, but I think you're missing my point. I'm not "mak[ing] the case against Loper Bright" here; I have done that previously. Here, I'm detailing what is going to happen — and how — as shown in this decision. And, while there might be all manner of arguments, such as those you make, about why the D.C. Circuit might have gotten the Chevron analysis wrong in the past regarding this issue, that's not what Griffin addresses today — and he almost gleefully says so with his, "Applying Loper Bright means we can end the FCC’s vacillations," comment.
Ok. But in that case, it seems to me that the point you are making here undermines the case you previously made against Loper Bright.
It's one thing to argue that it's a judicial power grab for the courts to deem that agencies deserve no deference at all, and all matters should be judged by the courts as matters of first impression. It's quite another to argue that in cases where every time the party in control changes, the interpretation of law flips, despite no change in law, facts, or circumstances.
If the latter is a frequent outcome of Chevron, it seems to me there's a very strong argument that the reversal of Chevron is not merely a power grab, but sound law, that's arguably even obligatory. It seems extremely hard to make a principled argument that ongoing interpretative "vacillations" with each change in administration is somehow beneficial. (Keeping in mind that, with Chevron--and Loper Bright--we are not talking about instances of ordinary regulatory decision-making, where Congress has clearly delegated some decision-making to an agency--which intentionally creates the possibility of politically-driven change over time--but, rather, cases of statutory interpretation, where lack of statutory clarity is the source of the changes.)
Where administrations of different parties simply go back and forth with dueling interpretations, there's clearly no agency expertise at play to defer to, and it seems strained at best to suggest that what is ultimately only a very slightly-more direct electoral accountability of agency appointments vs. judicial appointments outweighs the strong public interest in eventually reaching some stable understanding of what any given law means.
In those circumstances, would it not seem appropriate--or even obligatory--for the Court to rethink a policy that, after some 4 decades, has produced vacillations, rather than stability?
Sure, we all would prefer if such disputes got resolved in the direction we prefer. We all would be more comfortable if the courts were either dominated by jurists that hew reasonably to our own ideological beliefs, or where we perceive the courts as not being very ideological.
But it's really hard to argue that a judicial policy that produces frequent vacillations is better than one that produces stability.
So if the NN case is not an outlier where Chevron deference was previously improperly applied, but rather, is exemplary of a common occurrence under Chevron, then I think I have to reconsider the view that Loper Bright is primarily a power grab.
I find your comments somewhat humorous in that certainly since at least Marbury v. Madison, (and actually further back for judges in the American system as it evolved from England), judges were always charged with interpreting the law before applying it to facts. The idea that agencies in the executive branch would have the final say on the interpretation of a law if such interpretation was “reasonable“ is an upending of traditional judicial power that should have been overthrown, and I’m glad that it was.
The imperial presidency is out of control. It would be an abdication by, not an arrogation of power to the judicial branch to have left Chevron in place. I find your concerns particularly lacking in historical footing for a left-leaning commentator such as yourself to advocate for further expansion of the executive power by keeping Chevron in force.
If statutes are ambiguous, shouldn't Congress fix them? I agree with setting aside Chevron deference. I do not agree that this is a judicial power grab. Maybe I am naive but I think the Court is saying to Congress - you were elected to write clear laws, please do your job.
Under Republican control the House is minimally functional in passing anything. If they have to provide written detailed meticulous guidance on implementation, minimal will turn into zero. Maybe that is a good thing. They can spend their time kicking things down the road rather than legislating.
Thats the point and way it was designed. It should be hard to get things through congress. Therefore, local states should be making most of the rules/regulations because those are more responsive to those they represent.
Hey Chris... Breaking News ! See > https://www.meidasplus.com/p/ny-judge-orders-trump-to-be-sentenced/comments?publication_id=3078900&post_id=154106411&isFreemail=true&comments=true&action=post-comment
The Administrative Law behind the creation of regulations mandates an extensive period of public review and comment. Will the Courts decide they don't have to follow this law?
Reading some of the comments challenging your interpretations, Chris, I say stick to your guns. And thank you.
I wonder that the real loser in Chevron, et al, is the tangible impermanence of settled law. Considering Net Neutrality as a concept, alone, by this former engineer working both sides of telecom and data, the net has never, ever been a neutral entity. Never. Ever.
But, regulation is necessary thing. The net—data and telecom—as a whole has been and should be a regulated thing.
Regulation provides the operational guidelines and limits to prevent unnecessary failure. I see the decision no different than removing structural support from heavily traveled bridge. As that decision ripples forward at-large, we're likely feel the uncomfortable rumbling of weakening and failure.
It seems that, today, the baby was (yet again) simply thrown out with the bathwater. The issues remain astronomically distant from disabuse. The primary change I see to have occured a gross repolarization due to bias alone. The court may as well have used ChatGPT to make its decision.
Nothing is settled, but a cupboard has been opened. Is it "the" cupboard or just one of many? Both sides have merely effed around. I'm not looking forward to this particular finding out phase.
This is not a ruling on Constitutional law, right? Congress could pass a statute with language that even the Sixth could not misunderstand. I don't hold out any hope for the Fifth, naturally.
Getting that done will take some doing, granted.