Illustration: Sarah Grillo/Axios
The Supreme Court's recent decisions put the onus squarely on Congress to craft detailed legislation on tech policy, something lawmakers have long struggled to do.
Why it matters: In a world where Congress is slow to pass any tech and AI bills, weakened agencies that had been picking up the slack will be less empowered to move forward with rulemaking and standards-setting.
- This is especially apparent in artificial intelligence, where lawmakers lack technical expertise.
Driving the news: The Supreme Court on Friday overruled the long-standing Chevron precedent, giving courts the power to decide whether agencies are acting within the authorities given to them in laws.
- Since 1984, when Chevron was enacted, agencies had been given leeway to interpret vague laws using their own technical expertise.
- In a separate case Monday, Corner Post, the court extended the window to challenge agency decisions retroactively, further opening up the floodgates of litigation against the government.
Lawmakers rely on expert agency officials when crafting legislation, not just during the implementation phase.
- But overly prescriptive laws are antithetical to tech, which is constantly and quickly evolving, requiring wiggle room in the agency rulemaking phase.
The intrigue: Fear is brewing on the Hill that technically detailed laws will become obsolete as tech advances at breakneck speed, especially if those laws are caught in yearslong litigation.
Reality check: First, Congress would have to pass tech bills.
- Historically, that's been a long shot because differences among lawmakers on privacy, content moderation and other issues run deep.
Zoom in: The FCC's decision to treat the internet as a telecommunications service could be threatened by the Chevron ruling because, in the past, judicial reviews have taken the precedent into account.
- The FCC is reviewing impacts to the agency.
- But for net neutrality, it has found that the best reading of the statute was that broadband is a telecommunications service and the FCC did not rely on Chevron to adopt the rules, spokesperson Will Wiquist said.
At the FTC, the Chevron decision may have little impact because the agency has never used a Chevron argument in its litigation, per a person familiar with the agency.
- Most of its lawsuits have to do with mergers and acquisitions, which are fact-based and evidentiary and not reliant on interpreting statutory authority.
- The FTC's Junk Fee rule already has a 60-day window for challenges, the person pointed out, meaning they couldn't be subject to new challenges under Corner Post. Other longstanding rules could be challenged if Congress doesn't act to add a specific statute of limitations to the Administrative Procedure Act.
- Such challenges could lead to a jam of litigation and delay agency proceedings.
At NTIA, the law that authorized the BEAD internet grant deployment program includes a judicial review standard that lawmakers could emulate to circumvent legal challenges to similar, grant-related tech laws in the future.
- The law gives the District Court for the District of Columbia exclusive jurisdiction to review the assistant secretary's decisions and must affirm any such decisions unless the secretary engaged in corruption.
For AI, this means the plethora of agencies carrying out the Biden administration's executive order are now subject to greater legal scrutiny.
- But agencies shouldn't hold themselves back from going ahead with new standards and rules because of these rulings, Rachael Klarman, executive director of Governing for Impact, told Axios.
- Klarman said that although recent rulings are concerning, Chevron has been weakened for years and the Biden administration has been regulating, accordingly knowing it can't rely on Chevron to adapt.
- "As long as agencies continue to put out regulations grounded in statutory authority with legal analysis tied in, I think that the impact could be somewhat limited," she said.
The bottom line: The U.S. trails behind other developed nations in tech regulation, usually in the name of not getting in the way of innovation.
- The SCOTUS rulings will be a boon for state-level tech regulation, driving the patchwork of rules in the U.S. and cementing Europe as the global standard setter.
