In a momentous decision, a panel of the D.C. Circuit (Judges Srinivasan, Tatel, and Williams; opinion by Srinivasan, partial dissent by Williams) has upheld the FCC’s “net neutrality” rule. Henceforth broadband providers will be regulated not as information providers but as a “telecommunications service” under Title II of the Communications Act. Among other things this entails “must carry” obligations and a command that the providers may not charge different rates to different content providers (in regulatory parlance, “paid prioritization”).
Over at Notice & Comment Nicholas Bagley has a characteristically timely and thoughtful piece on a recent D.C. Circuit decision in American Hospital Association v. Burwell (AHA). The precise issue (Medicare payments) is a bit in the weeds but it invites a much broader thought about AdLaw: somehow it never gives you a remedy that’s worth having. But that’s actually something courts could and probably should change.
We mourn, as we should, the loss of a truly great man. But we can’t do so in full measure—not now. While we can guess at the contours of a Nino-less Court, the horrors will become palpable only over the years. In any event Harry Reid (Frank Underwood without the charm) is leaving no time for decorum, let alone mourning.
Last month, the EPA finalized major new rules requiring carbon dioxide reductions across the energy-generating industry. The rules require power plants to reduce emissions levels to 32% below their 2005 levels in the next fifteen years, and it is part of the administration’s attempt to force plants to shift from coal to wind and solar energy. President Obama views the new rules as a crucial part of his environmental legacy; he introduced his “Clean Power Plan” (CPP) as “the single most important step America has ever taken in the fight against global “climate change.”
The new rules are big, they are complex – but we’ve seen the basic story of what the administration is doing here before. In various areas of environmental policy, along with several other policy areas as well – most notably with immigration, health care, and financial regulation – the president has directed agencies to do through administrative edict what could not be accomplished through Congress. Think of the CPP as the failed cap-and-trade bill, take two – only now announced through the executive branch, rather than enacted through the legislature.
This past week, the Food and Drug Administration formally withdrew 47 draft guidances. (I have no idea what they were about. If you’re sufficiently intrepid to pursue this, the Federal Register notice is here.) FDA’s step may or may not have to do with a May 7 letter from Senators Lamar Alexander (R-TN) and James Lankford (R-OK) to several federal departments and agencies (Department of Labor, Department of Education, HHS, EEOC) requesting information on the agencies’ use of guidance documents. The letter expresses concern that the agencies may be using guidance documents in ways that circumvent the notice and comment requirements of the Administrative Procedure Act.
Here’s a quick update on two pending Supreme Court items, both of huge interest to a vast range of commercial actors and actually the country. Non-event: still no decision in Comptroller v. Wynne, a “dormant” Commerce Clause case over the double taxation of income earned in interstate commerce. Next to Zivotofsky v. Kerry, the Jerusalem passport case, Wynne is the only case still open from the Court’s November arguments. As I wailed here and here, the Court’s highly unusual cert grant in Wynne—to a state court, in a case involving no lower court splits and on a ruling that affirmed the…
In an earlier post I commented on President Obama’s success in bulldozing the Federal Communications Commission (FCC) into regulating the Internet as a public utility. GOP legislators have since vowed to look into the matter; among other things they’ve asked the FCC to turn over all correspondence with the White House, to learn whether there has been any “illegal coordination” between the President’s flacks and the “independent” FCC. This strikes me as a rather pathetic response and an unhelpful distraction.
This past Monday the Supreme Court heard oral argument in (yet) another important AdLaw case, Perez v. Mortgage Bankers Association. At issue: the D.C. Circuit’s “Paralyzed Veterans doctrine,” a set of cases holding that under some circumstances, agencies seeking to change their interpretation of a regulation or law must go through notice-and-comment rulemaking even when the original interpretation was adopted informally.