Net Neutrality Goes Down in Court

The Biden regulatory blitz continues, but courts are beginning to do their job to stop the biggest legal overreaches. A Sixth Circuit Court of Appeals panel blocked the Federal Communications Commission’s net neutrality rule, citing the Supreme Court’s major questions doctrine. Welcome to the post-Chevron world. “An agency may issue regulations only to the extent that Congress permits it,” the court writes. “The more an agency asks of a statute, in short, the more it must show in the statute to support its rule.” The FCC pointed to a catch-all in the 1934 law that lets it “prescribe such rules and regulations as may be necessary in the public interest” to implement Title II. “But such general or ‘ancillary’ authority to fill gaps in Congress’s regulatory scheme does not suffice to show that Congress clearly delegated authority to resolve a major question like this one,” the court writes. In the Chevron world, judges routinely deferred to administrative agencies when regulators sought to fill in such “gaps.”