◼ POLITICS Bloomberg Businessweek December 21, 202030
ILLUSTRATION BY CHARLOTTE POLLET● If courts frown on the Chevron doctrine, changing policy via agency rules will be toughBiden’s Agenda Faces a
Roadblock: Conservative Judges
Late on the second day of Amy Coney Barrett’s U.S.
Supreme Court confirmation hearings in October,
after hours of questions about abortion and health
care, Republican Senator Mike Crapo of Idaho
abruptly switched gears—to the minutiae of regula-
tory law. “The interpreter in our system should not
be the agency that is enforcing the statute,” Crapo
declared. “The courts should oversee this.”
Crapo was criticizing an arcane but highly influ-
ential legal precedent known as Chevron defer-
ence, or the Chevron doctrine—from the 1984 U.S.
Supreme Court decision in Chevron v. NRDC—in
which the justices give federal agencies the bene-
fit of the doubt when a regulation is challenged in
court. The decision grants agencies broad authority
to interpret laws that are written ambiguously and
has been cited tens of thousands of times.
Barrett declined to offer an opinion on Chevron,
which has become a valuable tool for agencies look-
ing to institute aggressive environmental rules. Her
exchange with Crapo was little more than a foot-
note in a hearing that focused largely on the abor-
tion precedent in Roe v. Wade. But ultimately, the
Supreme Court’s posture toward Chevron could
become a defining theme of President-elect Joe
Biden’s first term, with the new administration
poised to face a grinding series of legal battles over
the scope of its regulatory authority.Democrats have long hoped that unseating
PresidentTrumpwouldusherina periodofpoliti-
caltransformation.Butif Republicansmaintaincon-
troloftheSenateafterGeorgia’sJan.5 runoffs, Biden
won’t be able to push broad legislation through
Congress. He may have to use federal agencies’
rulemaking powers to advance much of his agenda,
relying on the Environmental Protection Agency to
craft policies limiting emissions and the ConsumerTHEBOTTOMLINE ExpertssaytheDOJ’stried-and-true
antitrustcaseagainstGooglehasgoododdsofsuccess,whereas
theFTCsuitagainstFacebookmustdeliveronitsnovelapproach.NeilChilson,a formerFTCchieftechnologist
who’snowa seniorresearchfellowatthelibertarian-
mindedCharlesKochInstitute,saystheFTCmay
haveoverreached.“It’srelativelyuntried,”hesays
ofthestrategyagainstFacebook.
TheFTCis coordinatingcloselywithattorneys
generalwhorepresent 46 states, Guam, and the
District of Columbia. That group has also advanced
an innovative theory that Facebook degraded users’
privacy because it faces no competition. It’s more
common for enforcers to focus on increased prices
and decreased output. The FTC and the states also
say Facebook has increased prices for advertisers.MorestatesareexpectedtosueGoogleandmove
tojointhe 11 states that are already part of the fed-
eral case, Bloomberg has reported.
Together, the two cases could redraw the rules
that Silicon Valley has been operating under since
the Microsoft case, says Weinstein, the Cardozo
professor. “Whatever comes out of these cases,”
hesays,“isgoingto set the course of antitrust
lawforthenext 20 years.” �Ben Brody, with
DavidMcLaughlin