SpaceX has adopted similar tactics in its battles with federal regulators. After the National Labor Relations Board in January accused the company of illegally firing eight employees for criticizing Musk in an internal letter, SpaceX filed a lawsuit claiming that the agency’s structure is unconstitutional.
Overthrow Chevron in particular, means “of course we’re going to have more litigation,” says Berin Szoka, director of the Washington-based, nonpartisan think tank TechFreedom. For example, the FTC’s April decision prohibition of the use of non-competition clauses is probably at risk. Although the agency did not rely on Chevron in its enforcement actions in recent years, the doctrine has actually earned it a level of deference in the courts when it comes to rulemaking. “There’s a zero percent chance that argument will win now,” Szoka says.
Another decision that could be more easily challenged is the Federal Communications Commission’s ruling, also in April, reinstating Obama-era net neutrality rules that were repealed by the Trump administration. Supporters argue that net neutrality is an essential consumer protection rule that ensures that service providers can’t treat some types of traffic (such as their own streaming services) better than others. The FCC 500-page document the decision explicitly mentioned Chevron as one of the statutes that gives it the right to restore the principles.
Szoka emphasizes that the decision to repeal Chevron likely to cause “confusion” in lower courts, it’s not a death sentence for courts to be subservient to regulators. Courts will now decide how much weight to give to regulators’ decisions — it could be a little or a lot — and it’s possible that some of those cases will end up in the Supreme Court, which would further clarify the fresh rules.
In a second Trump administration, the latest changes could even benefit progressives, Szoka says. If the Trump administration fills the agencies with leaders faithful to the president and pursuing his agenda, Szoka says, “I think you have to ask yourself, do you really want the courts to defer to these agencies?”
Meanwhile, Sawyer-Phillips says, other countries have already taken steps to regulate tech companies in ways that affect American consumers. “Tying the hands of administrative agencies could result in the European Commission being given regulatory authority over rapidly evolving tech industries on issues like privacy, data portability, and access to digital platforms and interoperability,” she says.
As a result, Sawyer-Phillips adds, the United States is lagging behind the rest of the world on essential issues such as antitrust: “The United States invented competition policy—what we call antitrust—but we’ve not only failed to adapt to the modern era, we’ve fallen into political entrenchment.”
With death ChevronCongress could step in and try to establish a comparable level of deference for regulators. But that strategy is not guaranteed to succeed. “It’s hard for Congress to overturn Supreme Court precedent,” Vladeck says. “Tomorrow, Congress could pass legislation that would reimpose Chevron “a principle and the court will ignore it.”
According to Vladeck, with all the recent Supreme Court rulings undermining the federal government’s authority and giving courts more freedom, something fundamental has changed. “It’s an imperial court now,” he says.