Last month, the United States Court of Appeals for the D.C. Circuit declined to reconsider its approval of the Federal Communications Commission’s “net neutrality” regulations. These rules, unsuccessfully challenged by telecommunications and other Internet providers, marked a reversal of course by the commission, which had previously applied a light touch when it came to regulation of the Internet.
Arguments about the wisdom of net neutrality and the FCC’s jurisdiction to regulate in this area are complex and fascinating matters I leave to more expert commentators. Judge Brett Kavanaugh’s thoughtful dissent from the decision in United States Telecom Association v. Federal Communications Commission, however, raises an important question that cuts across administrative law as a whole: When, if it all, should a reviewing court defer to executive branch agencies’ legal interpretations that implicate “major” questions of social and economic policy?
Judge Neil Gorsuch of the Tenth Circuit Court of Appeals is by virtually every account a stellar jurist. His writings are now being mined, by supporters and opponents alike, for evidence of his commitment to judicial restraint and the separation of powers.
That evidence is not hard to find. In an address delivered on April 27, 2016, Gorsuch spoke of “the great project of Justice Scalia’s career,” namely to expound “the differences between judges and legislators.”
A central principle of modern administrative law is that federal agencies—not the courts—are the primary interpreters of ambiguous federal statutes that Congress has charged the agencies to administer. The Supreme Court crystallized this deference doctrine in its 1984 Chevron decision, though some variation had existed since the 1940s (and maybe even longer, or perhaps not). In 2005, Justice Thomas framed Chevron’s practical significance:
If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.
That opinion, National Cable and Telecommunications Association v. Brand X Internet Services, upheld and expanded the doctrine of Chevron deference. But in recent years Justice Thomas has led the way in expressing skepticism about it.
Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.