The Supreme Court just kneecapped tech regulation
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Illustration: Annelise Capossela/Axios
The Supreme Court's decision Friday limiting executive branch power also further hobbled U.S. government efforts to roll back Big Tech's power.
Why it matters: Tech giants have long fueled efforts to pass new federal laws limiting the companies' influence. But now, and for a long time to come, advocates will need to find other ways to achieve that goal.
Driving the news: The Supreme Court's decision essentially scuttles the regulatory strategy Congress has long used to establish rules for complex technical realms like health care, the environment and telecommunications.
- For 40 years, under a Supreme Court principle known as "Chevron deference," Congress has assumed it can draft broad principles establishing its goals and plans — and leave the complex implementation details and case-by-case calls to experts at executive branch agencies.
Between the lines: By overturning the Chevron principle, the court is requiring Congress to write laws that predict the future.
- Legislators can no longer set basic rules and let agencies apply those rules to new circumstances.
- It will be up to an increasingly conservative legal branch to decide whether agencies have overstepped their bounds.
Case in point: This regulatory revolution comes as the U.S. government is just beginning to get its head around AI's emergence as tech's new platform.
- Chevron's demise means that any government effort to set guardrails around AI's risks will be harder to pass and enforce.
A separate SCOTUS decision released Monday further darkens regulators' prospects.
- The Corner Post ruling effectively removed an existing six-year limit on the right of affected parties to challenge regulations.
- This means businesses can now go back as far as they want in time and try to overturn rules they don't like.
Zoom out: The court has struck at the heart of the Progressive Era ideal that experts in government with specialized knowledge can represent the public interest in conflicts with corporate power.
- That's the longtime job of agencies like the FTC, FCC and other executive-branch bodies tasked with setting rules for the tech sector.
Zoom in: Existing agencies will continue to enforce existing laws. But the change cuts especially hard in the tech world because the industry already moves too fast for government.
- No law written and approved at the speed of the U.S. political system is ever going to be able to detail rules and remedies for problems with tomorrow's hot technology.
- Until now, every plan to regulate tech relied on existing or new agencies to interpret and enforce broad principles in areas like safety, privacy, free speech and security.
But that's unconstitutional, the Supreme Court now says.
- Congress must lay out all the details in advance in precise laws. Then only the courts can resolve disputes over their meaning — assuming the parties have deep enough pockets to pursue court cases.
Winners: No one has deeper pockets than Microsoft, Apple, Google, Meta and Amazon. They can keep expanding their legal budgets, defending themselves in court and doing whatever they want in the meantime.
- Whole generations of hardware and software can be born and die in the years it takes for a complex case to be tried, appealed and resolved.
Losers: The activists and organizations that support stricter tech regulation just saw the goalposts move into the far distance.
- It has always been tough to pass new laws governing tech companies' behavior.
- The demise of "Chevron deference" means that writing such laws will now be a game of future-prediction that no one can play well.
The other big loser is the public.
- The institutions of representative democracy were never great at handling the metamorphic risks and elusive problems generated by the rise of digital technology.
- Now, instead of being able to defer politically sensitive calls and arcane technical details to administrators, already deadlocked legislative committees will have to get into the weeds before every vote.
- That will make passing new laws — already a long shot — even harder.
The bottom line: Big Tech companies are freer than ever to pursue their interests.
- Free-market believers will argue that users and consumers can vote with their feet if they don't like a particular company's behavior.
- But the winner-take-all monopoly nature of so many tech markets makes that option tough to exercise.
What's next: Individuals dissatisfied with the tech status quo will have to shift their energies.
- Pressure-group lobbying is even less likely to win results.
- Creative opponents of Big Tech will look for innovations in collective action and distributed alternatives to centralized systems.
Editor's note: This story has been updated with an additional section about the Corner Post decision.
