The US Supreme Court has given a huge gift to big tech companies

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 Elon Musk in an internal letter, SpaceX filed a lawsuit alleging the agency’s structure was unconstitutional.

The reversal of Chevron’s decision clearly means 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 banning noncompete clauses is likely in jeopardy. While the agency hasn’t relied on Chevron in its enforcement actions in recent years, the doctrine has given it a certain level of deference in court when it comes to rulemaking. There’s a zero percent chance that argument will prevail now, Szoka says.

Another decision that could be more easily challenged is the Federal Communications Commission’s (FCC) decision, also issued in April, reinstating Obama-era net neutrality rules that were repealed under the Trump administration. Net neutrality, its proponents say, is an important consumer protection principle that ensures that service providers can’t treat certain types of traffic (such as their own streaming services) more favorably than others. The FCC’s 500-page document on the decision explicitly cites Chevron as one of the laws that gives it the authority to reinstate the rules.

Szoka points out that while the decision to overturn Chevron is likely to create confusion in lower courts, it is not a death sentence for the courts’ deference to regulators. The courts will now decide how much weight to give regulators’ decisions, which could be minimal or significant, and it is possible that some of these cases will end up before the Supreme Court, which would further clarify the new rules.

In the event of a second Trump administration, the recent changes could even end up benefiting progressives, Szoka says. If the Trump administration is filling agencies with leaders who are loyal to the president and who are implementing his agenda, Szoka says, I think the question is: Do you really want the courts to defer to these agencies?

Meanwhile, other countries have already taken steps to regulate tech companies, with implications for American consumers, Sawyer-Phillips says. Tying the hands of government agencies could have the effect of ceding regulatory authority over evolving tech industries to the European Commission on issues such as privacy, data portability, and access and interoperability of digital platforms, she adds.

Indeed, Sawyer-Phillips adds, the United States lags behind the rest of the world when it comes to important issues like antitrust law: “The United States invented competition policy – ​​what we call antitrust law – but not only has it failed to adapt to modern times, it has fallen into political withdrawal.”

With Chevron gone, Congress could step in and try to legislate a comparable level of deference to regulators. But that strategy has no guarantee of success. It’s hard for Congress to override Supreme Court precedent, Vladeck says. Congress could pass a law tomorrow reimposing the Chevron rule, and the court would ignore it.

According to Vladeck, recent Supreme Court decisions undermine the power of the federal government and give more latitude to the courts. A fundamental change has taken place. It is now an imperial court.

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