As reported by Policyband, at a policy forum hosted yesterday by Broadband Breakfast, Senator Amy Klobuchar bemoaned the demise of the Chevron deference doctrine, claiming that the doctrine's jettisoning "could be a real mess because a lot of how we move forward with our economy is if we have consistent rules in place, right?” She went on: “You know what the rules are and then you can invest because you know what the rules are. And if people don't know what the rules are going to be or if they're going to change, it makes it a lot harder.”
Senator Klobuchar is right that stability in the law is important for businesses so they can properly plan investments and make other business decisions. This is even more true, of course, when the legal rules in question are not improperly or unnecessarily restrictive, costly, or burdensome.
But Senator Klobuchar, and others who have taken the same line, especially those familiar with communications law and policy, should know better. They surely understand that the Chevron doctrine promoted more instability in legal regimes than stability. Of course, the back-and-forth "switcheroos" in the "net neutrality" context between imposition of heavy-handed Title II public utility-like regulations and a light-touch regulatory regime for broadband Internet services is a prime example.
Each time the FCC adopted and then abandoned one or the other version of its "net neutrality" regime it relied upon Chevron deference to support the switcheroo. And each time the courts affirmed the FCC's changes based on the Chevron deference doctrine.
Very few credible observers contend that somehow this instability in the legal regime governing broadband providers has promoted investment, or otherwise has been conducive to business planning. Of course it hasn't. And the same "instability effect" has occurred across the administrative state where regulatory regimes have been subject to back-and-forth switcheroos sustained by application of Chevron deference.
The principal reason the Chevron doctrine was eliminated in Loper Bright Enterprises is because Chevron is inconsistent with the Administrative Procedure Act's requirement that courts, not agencies, must decide “all relevant questions of law” arising on review of agency actions. And the Constitution's separation of powers reinforces the APA's dictate.
In my view, the elimination of the Chevron doctrine is correct as a matter of law. And the fact that it promotes stability with respect to regulatory regimes cannot be gainsaid.
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