For most people, the Supreme Court’s decision in West Virginia v. Environmental Protection Agency was about environmental policy and what the Environmental Protection Agency can still do to cut carbon emissions. For a smaller subset, mostly lawyers, W. VA v. EPA was an important (but confusing) administrative law case that we will spend a bunch of time arguing about how to apply to agencies generally. And for the tiniest of all possible subsets, meaning me and a handful of other telecom lawyers, it was about . . . net neutrality. Because just about everything in telecom still revolves around net neutrality. Srsly. If we were living in the Don’t Look Up universe and a giant asteroid was about to smash into the Earth, I’d be getting questions from folks about whether I thought the asteroid supported classifying broadband as Title II.
The other basic truism about these events is that they are rather like ink blots, where what you see depends a lot on what you already think. So those who hate Title II are convinced that this spells doom for any FCC reclassification efforts, whereas those on the pro-Title II side think this doesn’t really change anything. I’m as much a human being subject to this bias as anyone else. So I can only explain why I think W.VA. v. EPA hasn’t changed anything and let y’all decide if I’m right. It all depends on what the Court means by a “major question” that requires “clear proof” that Congress intended to vest the agency with the power to do the thing.
Annoyingly, the Supreme Court has not been particularly clear on this concept. The anti-Title II folks point to Kavanaugh’s dissent from the D.C. Circuit’s refusal to rehear USTA v. FCC (the case that upheld the FCC’s 2015 Title II/Net Neutrality Order, which rested in part of what Kavanaugh called “the major rule” doctrine (now officially called “major question” doctrine) and the fact that the Roberts decision in W.VA v. EPA cited the Kavanaugh dissent (although not for anything having to actually do with net neutrality.) On the other hand, as I explain below, the actual language describing the “major question doctrine” if you read the case runs against the description of the “major rules doctrine” as described by Kavanaugh in USTA. More importantly, the Court’s reliance on Gonzales v. Oregon – which cites the FCC’s authority over broadband in Brand X approvingly as an example of where Congressional delegation is “clear” – seems to me much more important than a passing citation to the Kavanaugh dissent.
Additionally, while we always knew where Kavanaugh would be if this ever reaches SCOTUS again, there is plenty of reason to believe he lacks 4 additional votes for his position. Notably, Thomas (and to some degree it seems Alito and Gorsuch) have all fallen in love with common carrier again. True, that is in the context of social media, but it would be a level of weirdness to find that judges by common law can determine Facebook is a common carrier but broadband providers can’t be common carriers without Congress expressly saying so. Also, Thomas actually wrote the Brand X opinion, which found that it was totally cool for the FCC to classify DSL as Title II even if cable broadband were classified as Title I, so it’s hard to see how this kind of agency discretion is compatible with “major question doctrine.”
I break all this down in detail below . . .
What is “Major Question Doctrine” and What Does It Have to Do With Net Neutrality/Title II?
It’s easier to answer the second question than the first. Back in 2016, in USTA v. FCC, the D.C. Circuit upheld the FCC’s 2015 Open Internet Order which classified broadband internet access service [BIAS] as Title II and created net neutrality rules. Opponents sought rehearing by the D.C. Circuit en banc. The D.C. Circuit declined to rehear the case, which prompted dissents from this decision by both Judge Brown and (then Judge) Kavanaugh. In separate opinions, both Brown and Kavanaugh argued that the FCC’s Order violated both “major question” doctrine (although Kavanaugh, rather tellingly, calls it the “major rule doctrine”) and the First Amendment. It also prompted Judges Tatel and Srinivasan (who wrote the original panel decision) to write a concurrence to the order denying rehearing/rebuttal to (mostly) Kavanaugh on both counts.
When Kavanaugh got appointed to SCOTUS, Klobuchar asked him about his net neutrality opinion and Kavanaugh made it clear he stood by his analysis that Congress had to explicitly authorize classifying broadband as Title II and applying net neutrality. Kavanaugh has even brought it up in some dissents and concurrence since he got to the Supremes. So no one has ever doubted that if Kavanaugh ever gets the chance, he would make his dissent law of the land in a heartbeat. As we have seen, that’s the fun of being on the Supreme Court these days. The real question is: does he have 4 other votes to adopt his version of “major rule/question” doctrine and apply it to net neutrality (assuming we ever get there).
So What IS “Major Question” Doctrine?
As stated in W.VA. v. EPA, Major Question doctrine asks whether when an agency interprets the language of a statute, Congress genuinely intended to confer on the agency the power to do what the agency did – even the plain language of the statute would appear to at least support what the agency actually did. To quote Roberts:
“Where the statute at issue is one that confers authority upon an administrative agency, that inquiry must be “shaped, at least in some measure, by the nature of the question presented”—whether Congress in fact meant to confer the power the agency has asserted.” Slip op at 16.
This gets into a bunch of problems right away, especially in light of the traditional idea that one defers to an agency’s interpretation of the law and has flexibility in how to apply it. Most folks think of that as the Chevron Doctrine from Chevron U.S.A., Inc. v. Natural Resources Defense Counsel. But the general concept of deferring to administrative agencies on the nature of their authority and the mechanism of implementing it – particularly the FCC – is much, much older. The most important examples are NBC v. United States (affirming FCC authority under “public interest standard” to set ownership limits and impose other sweeping rules on broadcasters) and United States v. Southwestern Cable (affirming that Congress gave the FCc “vast” powers to regulate all communication in the U.S. and affirming the FCC’s “ancillary jurisdiction” over cable without express Congressional authorization (I’ll come back to the importance of Southwestern Cable, to the extent we still care about precedent, later). Perhaps sensing this, Roberts goes on to clarify that major questions are supposed to be pretty rare things.
“In the ordinary case, that context has no great effect on the appropriate analysis. Nonetheless, our precedent teaches that there are “extraordinary cases” that call for a different approach—cases in which the “history and the breadth of the authority that [the agency] has asserted,” and the “economic and political significance” of that assertion, provide a “reason to hesitate before concluding that Congress” meant to confer such authority.” Slip op at 17
This is still extremely squishy, and the analysis in these cases (until recently) actually employed Chevron and rejected the agency’s action under what is called Chevron Step 1. The idea that Congress had spoken to the question – but in the negative. This is especially true for the opinions that are identified by Roberts (and FWIW Kavanaugh) as the fundamental building blocks of the Major Question doctrine and were written by Scalia: MCI v. AT&T, and Utility Air Regulatory Group v. EPA. MCI v. AT&T is both a good example of how we traditionally did this before the Court decided this stood for something else (and which no doubt has Scalia, the great defender of Chevron, rolling in his grave). Back in the day, the Communications Act affirmatively mandated that every Title II interstate telecommunications service operate under a tariff, although the FCC could “modify” how the tariff worked based on a bunch of factors. In the 1980s, the FCC tried to get rid of tariffing for competitive carriers such as MCI. The FCC argued that the use of the word “modify” was sufficiently ambiguous to allow it to eliminate tariffing entirely in certain cases. Scalia’s opinion went through the history of the statute and the FCC’s regulation generally and found that while “ambiguous” might have some level of general ambiguity, context made it very clear that Congress intended the FCC to tariff every telecom service.
Roberts discerns here and in these other cases not a principle of statutory interpretation under Chevron to determine if Congress actually denied authority to an agency to act in a particular way, but a broader power to the courts to determine if Congress “clearly” authorized the agency to take the chosen action. The difference is important. Particularly since the question of when to apply “major question” is rather iffy. It involves “economic and political significance” (which can be said of nearly any agency decision, especially when Congress delegates to the agency power over a significant industry sector) as well as “history” and the “breadth of authority the agency has asserted.” More troubling from my perspective, courts are apparently supposed to look at whether random proposed bills on the subject were ever not passed by Congress – a practice that Southwestern Cable and other SCOTUS cases says quite explicitly not to do because who the heck knows why Congress acted or didn’t act? Maybe they thought the agency already had authority and wanted the agency to use it, for example. Even the cases that do look at this sort of failure to pass legislation as useful do so with fairly intense scrutiny and with citations to lots and lots of hearings and other legislative history (FDA v. Brown & Williamson provides a good example).
To put this in the net neutrality context, we can go back to the first time Congress tried to pass a net neutrality rule in 2006. As someone who was there and writing about it and opposing the bill at the time, I can say that the reason Congress didn’t pass a “net neutrality” bill, according to those of us opposing it, was because the FCC had authority and the bill would have severely limited that authority. Does analyzing the reasons for Congressional non-action play a role in interpreting whether something is a major question. W.VA v. EPA is itself inconsistent on the subject – doing a deep dive into the legislative history on the one hand but then citing in passing a bunch of failed efforts by Congress to pass a carbon-credit trading system without digging into why they failed.
Anyway, once you determine that something constitutes a major question, you then need evidence that Congress “clearly” granted the agency power to address the issue and “clearly” authorized the agency to adopt the relevant rule. This burden to show that Congress “clearly” authorized the agency is on the agency, rather than on those challenging the agency’s action. Presumably if the court finds that Congress did “clearly” authorize the agency to do whatever, we would then move on to a more deferential analysis of whether the agency acted arbitrarily or not under Chevron and the APA. Unfortunately, we have no way of knowing how a court determines whether Congress clearly authorized something because (surprise!) the only times the Roberts’ Court has invoked “Major Question” is when they want to reverse something. We do not so far have a single case where the Court either (a) rejected an argument that something was a “Major Question;” (b) How a court determines that Congress actually did “clearly” authorize the agency to do what it did; and (c) what happens after finding that the agency was, in fact, authorized to address the problem.
Perhaps over time we will get some answers to this. But so far it is rather difficult to take what is supposed to be a primary cannon of statutory interpretation that only gets invoked when the Court thinks that something is too important for an agency to decide. Defenders of “Major Question” insist there is a clear principle in there somewhere – although even Kavanaugh conceded that major rule “has a bit of a ‘know it when you see it’ quality.” No one I ask, even defenders of the principle, can articulate for me how to know when something is big enough, important enough and different enough from prior agency action to constitute a “Major Question” from an ordinary run-of-the-mill exercise of statutory authority.
Which brings me back to the question of 2,000 words ago. How do you apply this to Title II/net neutrality and are there major differences between what Roberts describes and Kavanaugh described as the “Major Rule” doctrine, and is the citation to the Kavanaugh dissent a big deal.
Let’s Talk Citations in Cases.
I have never clerked for the Supreme Court, but I did once clerk on the DC Court of Appeals. (This one, not this one.) My experience is that sometimes a citation to a prior case (particulrly a concurrence or dissent) is important, and sometimes it isn’t. My experience also is that if a judge on the majority wants a particular citation made, the judge writing the opinion will generally oblige unless they think it is really, really important not to do so.
Why does it matter? Because sometimes a citation to a particular concurrence or dissent in a majority opinion is a way to get the non-governing decision more “oomph” through the back door. For example, if the Court did want to adopt Kavanaugh’s view (in the event it ever comes up), they could cite to this statement as being part of an official opinion – which in turn allows the future court to pretend this legitimizes the entire concurrence/dissent. So if this ever came up, we might see: “We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’ W. VA v. EPA, citing Kavanaugh USTA dissent. That would potentially make the Kavanaugh dissent look like something in line with W. VA v. EPA. This is clearly what Kavanaugh would like.
But it is also the case that it is pretty easy for a judge on the majority side to just ask for the judge writing the opinion to include a particular citation. Judges in the majority will generally do that, as it helps them keep the majority happy and generally reinforces collegiality. So to try to determine what the rest of the Court is thinking, it is important to look at context. This gets a drive by citation at the beginning in the context of laying the general framework, rather than for some particular element of the Major Question framework. And the Court never cites it again.
Additionally, there is a case the Court cites a lot more (close to 10 times) that – IMO – has more bearing in trying to figure out whether this particular tea leaf is The Grim out of Harry Potter signaling the death of net neutrality or just a bit of flotsam in the tea cup. The Court cites Gonzales v. Oregon as one of the foundational, building block cases of the Major Question doctrine. Gonzales dealt with the effort of then US AG Alberto Gonzales to prevent doctors in Oregon from prescribing drugs under Oregon’s assisted suicide law by threatening to to revoke their authority to write prescriptions if they did so. Gonzales justified this on the grounds that he (through the Drug Enforcement Administration) regulated doctor access to prescription pads under the public interest standard. The Court rejected this interpretation of the breadth of asserted authority, finding that Congress never intended to give DEA general power to regulate doctors.
Along the way, however, the opinion did find an agency to whom Congress did clearly delegate authority to have broad powers:
“The starting point for this inquiry is, of course, the language of the delegation provision itself. In many cases authority is clear because the statute gives an agency broad power to enforce all provisions of the statute. See, e.g., Nat’l [*259] Cable & Telecomms. Ass’n. v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S. Ct. 2688, 2699, 162 L. Ed. 2d 820, 837 (2005) (explaining that a Federal Communications Commission regulation received Chevron deference because “Congress has delegated to the Commission the authority to . . . ‘prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions’ of the Act” (quoting 47 U.S.C. § 201(b))).”
In other words, one of the foundational cases for “Major Question” doctrine explicitly calls out the FCC’s authority to make rules governing broadband because its authority to do so is “clear.” To be clear, the Court doesn’t cite to this passage any more than it cites to specific passages of the Kavanaugh concurrence. But if we are sifting tea leaves and pigeon entrails for clues about a hypothetical future net neutrality case, I think constant reference to a case that says the FCC has “clear” authority from Congress to make decisions around classifying broadband and regulating it under a giant, honking grant of authority is pretty significant.
Major Differences Between Roberts’ Major Question and Kavanaugh’s Major Rule.
Another problem predicting how this will work for net neutrality is a substantial difference between how Roberts’ describes “Major Question” and Kavanaugh describes “Major Rule,” even though each generally rely on the same set of cases to justify the existence of the doctrine (one suspects they read the same Law Review articles). I lack the basic artistic ability to set up a table with two columns, so I will just write this out.
How often does this come up? Justice Roberts repeated multiple times throughout W.VA v. EPA that application of “major question” is supposed to only be in “extraordinary cases” where an agency asserts “extravagant power.” It supposedly involves powers that the agency had never previously asserted, and which constitute a “radical” departure from past agency practice. To take the case at hand, the EPA deciding to create an entirely new system of cap-and-trade credits with the intent of forcing industries to shift away from carbon-based fuels under the clean air plan was certainly a very different approach than the EPA had ever tried before. Likewise, prior to Oregon passing a physician assisted suicide law, the DEA had never in its history asserted a power to substantively regulate physicians via the power to assign or withdraw a DEA number needed for prescriptions.
Kavanaugh, on the other hand, thinks this comes up every time an agency applies even an established rule for the first time. The FCC has been deciding whether new services were common carriers for purposes of Title II since it came into existence. That was considered its job. Congress defined mobile telephony/Commercial Mobile Radio Service as Title II in 1993 not because the FCC didn’t have the authority to define which wireless services were and weren’t Title II, but because it found the FCC was producing “inconsistent results” and wanted to have some more objective criteria. But it still expected the FCC to apply the definition of CMRS to every new wireless service – not come back to it every time it authorized a new wireless service. But under Kavanaugh’s reading, pretty much any time the FCC authorizes a new wireless service, it can’t just apply the Section 332 definition. It also has to wait until Congress tells the FCC that (a) yeah, this is CMRS, and (b) now you have permission to apply all those “onerous” Title II rules to the service that meets the definition of CMRS.
There is also a big difference between how Roberts describes decisions of “economic and political significance” and how Kavanaugh describes these terms. Again, what Roberts appears to be talking about – based on his descriptions and to the extent one can discern a guiding principle at all – is something that radically changes the agency’s jurisdiction. For example, CDC never claimed to have jurisdiction over evictions. That wasn’t just application of an existing rule to a new technology or situation. That was CDC saying that it’s general grant of authority gave it a very specific power it had never claimed before – to regulate when landlords can evict individual tenants.
By contrast, Kavanaugh states up front that he s not talking about the agency’s general jurisdiction – even Kavanaugh agrees that broadband is “communication by wire and radio” – but how much a new rule will cost the industry and whether by depriving the industry of its ability to behave in a particular way it “transforms” the industry by limiting the industry’s ability to do whatever it wants, even if the industry claims it doesn’t actually do the thing. Kavanaugh also seems to be saying that it was OK for the FCC to classify DSL as Title II in 1998 presumably because DSL was a much smaller industry or something (Kavanaugh never explains why DSL was different from other forms of broadband, but as I’m sure Kavanaugh would tell us, explanation is for wussies who don’t drink enough beer.)
Tatel and Srinivansan in their 2016 concurrence with denial of rehearing/rebuttal to Kavanaugh go through the lengthy list of problems with Kavanaugh’s approach, so I will not repeat them here. I will simply note that, despite a citation to Kavanaugh’s dissent in W.VA v. EPA for the general line that we expect Congress to make policy, what Roberts calls the Major Question doctrine and Kavanaugh calls the “Major Rule” doctrine apparently mean very different things. Roberts appears to mean a question about a new interpretation of the statute, whereas Kavanaugh seems to mean any rule generally authorized by the statute – but applied in a way that Kavanaugh thinks is “onerous” or “burdensome.” To paraphrase a different movie featuring a very different dread Pirate Roberts: “Major? You keep using that word. I don’t think it means what you think it means.”
Enough Legal Analysis! Do You Think Kavanaugh Has Four Other Votes Or What?
No I don’t.
Why Not?
A couple of reasons. One is that what Roberts describes and what Kavanaugh describe as the “Major Question/Rule” doctrine are really, really different. If Roberts agreed with Kavanaugh, he could have been a heck of a lot more explicit about it and much closer to Kavanaugh’s description. Kavanaugh goes on at great and self-righteous length about how important it is for judges to keep those damn bureaucrats in line and let Congress, through unelected judges with life tenure, make these decisions. You can see some of that in Gorsuch’s concurrence, which interestingly enough, Kavanaugh did not join. Why? My personal speculation is that Kavanaugh was not getting enough takers for even a more explicit concurrence that targeted net neutrality/Title II. So he took his one citation and otherwise kept his mouth shut.
OK, That’s Roberts. But We Saw in Dobbs You can Still Get 5 Without Roberts.
Yes, but in addition to no concurrence like Thomas’ from Dobbs saying “net neutrality delenda est,” there are a couple of other pigeon entrails pointing to this having zero impact on net neutrality. First, Thomas actually wrote Brand X, which found the FCC had authority to make the classification decision. Sure, Thomas subsequently said he would have done Brand X differently, but that was in reference to the first part of Brand X where he said that an agency can overrule a court under Chevron, not with regard to the overall FCC authority. More importantly, Thomas has rediscovered the joys of common carriage. True, he wants it for social media. But it is extremely difficult to explain how a state or a court could find that social media are common carriers under common law but an agency charged by Congress to designate whether communications providers are common carriers and apply statutes to those common carriers cannot – especially when the Supreme Court has spent the last 100 years saying how Congress delegated clear authority to the FCC to do just that.
Perhaps more importantly, if the FCC cannot apply Title II to Comcast and AT&T, it certainly cannot interpret Section 230 to give the FCC authority to regulate Facebook and Twitter. Under Kavanaugh’s “mother-may-I” rule any time the agency tries to apply even an existing statute to a new technology, there is absolutely no way a future Trump/DeSantis FCC is going to be able to grant the NTIA Rulemaking Petition (if resubmitted) to apply a non-discrimination rule to YouTube.
So no Roberts and no Thomas. That leaves only 3 other justices to apply “Major Question/Rule” the way Kavanaugh wants to the FCC. And Kavanaugh apparently could not persuade any of the remaining Justices to join him in a “net neutrality, we hates it precious!” concurrence. To quote Hamilton: Kavanuagh, you don’t have the votes.
Conclusion
All of this, naturally, is just speculation. Who the heck knows what the Roberts Court will do next? Or what a lower court interpreting the W. VA v. EPA will do. As always with the D.C. Circuit, but even more so than before, tell me the panel and I’ll tell you the outcome. Meanwhile, the usual Greek Chorus will chant that this latest omen shows that Title II reclassification and net neutrality are doomed. Doomed! DOOMED!! And therefore folks advocating for net neutrality better settle in Congress.
It’s worth trying to figure out how at some point what potential impacts W.VA v. EPA is likely to have more broadly. I guess we’ll see. But as far as net neutrality goes, it doesn’t change anything. Those who were convinced Title II was doomed before yesterday will see the inkblot confirming their belief. Those of us convinced the other way see a butterfly – or maybe a crazy anti-hero. These days, who knows?
Stay tuned . . . .
