What the Supreme Court Should Really Do About Chevron Deference
Plus an FTC open meeting, space regulation, the ARTICLE ONE Act, and more
Chevron Deference: Corbin filed an amicus brief arguing that the Supreme Court should keep Chevron v. Natural Resources Defense Council (1984) on the books, but eliminate the Chevron “doctrine” that has grown out of that decision. Judges should defer to agencies only when Congress has used an open-ended term such as “reasonable” or “appropriate.”
FTC: Today, we delivered remarks (pdf) at the FTC’s Open Meeting (video). Berin (8:04) explained why, given Lina Khan’s prejudgement of key issues in many potential lawsuits, courts may ultimately toss out such suits if Khan insists on adjudicating such cases herself. Andy (10:23) urges the FTC not to use the vague term “dark patterns” to blur the distinction between hardcore fraud and normal, if imperfect, business practices. See Berin and Andy’s Twitter threads. Bilal (33:48) warned that the Commission is alienating those stakeholders who have long defended the Commission’s independence just as the Trump campaign is calling for the FTC to be brought under the direct control of the White House.
Space Regulation: In the Washington Examiner, Jim explained that Congress’s task is to find the balance between “permissionless innovation,” where nearly anything goes, and the “precautionary principle,” where the government must first conclude that a space activity will cause no harm to the environment or others.
Jim’s testimony from last week was also quoted in SpaceNews and written up by The Center for Growth and Opportunity (CGO).
ARTICLE ONE Act: We signed onto a coalition letter for the ARTICLE ONE Act, which aims to check presidential overreach by limiting the power of presidents to declare states of emergency.
First Amendment: Ari was cited by Cato Institute on the unlikelihood that a federal court would find Target’s sale of Pride merchandise to fall under the existing legal definition of obscene or “harmful to minors.”
OceanGate: Ari’s piece in The Daily Beast, about CEO Stockton Rush using a SLAPP (Strategic Lawsuit Against Public Participation) to silence a critic of his OceanGate submarine, was mentioned in Wonderful Engineering.
Our take: Ditch the Chevron “doctrine,” but not the Chevron decision.