Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, writes on the FedSoc Blog that the “FCC still can’t interpret Section 230:”
Which brings me to proponents of the FCC’s power to interpret Section 230.
About a month after I wrote my original post, Seth Cooper of the Free State Foundation wrote a response entitled Power to Persuade: The FCC’s Authority to Interpret Section 230 Post-Loper Bright. While Mr. Cooper agreed with me that Loper Bright eliminated the FCC’s power to make binding authoritative legal interpretations of federal statutes, he argued that Loper Bright nonetheless “recognized that agencies retain the power to interpret the meaning of statutes within their jurisdiction and that, pursuant to Skidmore v. Swift & Co., courts still should consider agency views for their ‘power to persuade, if lacking power to control.’” Thus, argued Mr. Cooper, “a Trump 2.0 FCC possesses the power to issue a policy statement, declaratory ruling, and/or published report offering its interpretation of Section 230’s provisions, such as the meaning of ‘good faith,’ as a source of guidance for courts.”
Skidmore notes that agency “rulings, interpretations and opinions . . . while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” However, Mr. Cooper fails to acknowledge that the “weight [a court should accord to] such a judgment in a particular case” depends on four factors: (1) “the thoroughness evident in [the agency’s] consideration”; (2) “the validity of [the agency’s] reasoning; (3) the agency’s “consistency with earlier and later pronouncements”; and (4) “all those factors which give [the agency] power to persuade, if lacking power to control.”
Skidmore deference is case-dependent, and the FCC has yet to tip its analytical hand in any “policy statement, declaratory ruling, and/or published report,” so it is difficult to prognosticate how a court would view factors (1), (2), and (4).
But the third factor—“consistency with earlier and later pronouncements”—would clearly be problematic for the FCC. The Commission has never attempted to interpret Section 230, so there are no “earlier and later pronouncements” that a reviewing court could compare. The only thing that has been consistent has been the absence of agency action (on a bipartisan basis, no less). Such inaction by the FCC is unsurprising for two obvious and related reasons. First, as noted above, Section 230 does not provide the Commission with any enforcement or other regulatory responsibilities but is instead simply an affirmative defense for civil litigation. Second, and more broadly, digital platforms generally do not engage in any jurisdictional activity covered by the Communications Act. The FCC simply never had any pressing reason to address the question. Thus, any new action by the Commission to interpret Section 230 would be terra nova.
Bloomberg Law’s UnCommon Law podcast continues its series on the “story behind the fishing industry’s Chevron doctrine challenge:”
This season on UnCommon Law, we’re exploring the limits of agency power. To what extent are federal agencies authorized to create and implement regulations that aren’t explicitly mandated by Congress? And what happens when an agency goes too far? In this episode, the story of the fishermen who fought back.
Featuring:
- Wayne Reichle, president of Lund’s Fisheries
- Jeff Kaelin, director of sustainability and government relations at Lund’s Fisheries
- Ryan Mulvey, counsel with the Cause of Action Institute
- Erica Fuller, senior counsel with the Conservation Law Foundation
- Leif Axelsson, captain of the Dyrsten fishing vessel
- Greg Stohr, Supreme Court reporter for Bloomberg News
Joseph A. D’Angelo from the Florida International University College of Law published “Chevron Solutions: Restoring the Separation of Powers in a Post-Chevron Landscape” in the University of Florida’s Journal of Law and Public Policy:
The erosion of congressional authority in the face of expanding executive power, particularly through administrative agencies, is of critical importance. A robust and functional Congress is essential for maintaining the balance of power within the democratic system. This Article delves into the history and impact of Chevron deference. This doctrine granted agencies interpretative authority over ambiguous statutes, highlighting the consequences of Congress’s failure to assert its policy-making responsibilities. This passive legislative stance has allowed the executive branch to dominate national policy decisions, often leading to legal disputes and unstable policies subject to change with each
presidential administration. The Court’s recent decision in Loper Bright v. Raimondo overturned that doctrine but left no clear next steps. This paper posits next steps and advocates for reforms to reclaim Congress’s central role in governance. It presents three potential paths: (1) enacting a clear definition of the limits of congressional delegation by establishing what constitutes generally applicable rules of private conduct; (2) taking no action, instead observing how states manage deference in a post-Chevron context; or (3) adopting structural reforms to ensure Congress effectively checks executive power and upholds constitutional principles
In U.S. v. Bricker, the Sixth Circuit grappled with whether the Sentencing Commission could use a policy statement to expand the scope of the federal compassionate release statute, which authorizes early release for “extraordinary and compelling reasons,” to cover nonretroactive changes in sentencing law, when the en banc Sixth Circuit previously reached the opposite conclusion. In other words, can a federal agency use Brand X to overrule a federal court decision after Loper Bright?
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Finn Dobkin, a Senior Policy Analyst at the George Washington University Regulatory Studies Center, published a working paper titled “Uncertain Authority,” examining recent legal and institutional changes surrounding the Council on Environmental Quality (CEQ)’s authority to issue binding National Environmental Policy Act (NEPA) rules.
In Loper Bright Enterprises v. Raimondo, the Supreme Court ruled that the National Marine Fisheries Service (NMFS) failed to comply with the APA when it promulgated rules requiring commercial fishermen to pay for onboard conservation monitors. As a result, the court overruled decades-long precedent established under Chevron v. Natural Resources Defense Council. Overruling Chevron, Chief Justice Roberts noted that the APA “requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency’s interpretation of the law simply because a statute is ambiguous.” This is important in the context of CEQ’s oversight over NEPA. The text outlining environmental review guidelines is notoriously terse and left agencies with few instructions for what environmental reviews should look like thereby requiring them to exercise independent judgement to interpret the statute.
It is important to note that Loper Bright did, however, affirm Skidmore deference. Under Skidmore, courts may consider an agency’s interpretation based on its persuasive power. This standard relies on several qualitative factors including “[the] thoroughness evident in its consideration…the validity of its reasoning…its consistency with earlier and later pronouncements…and all those factors which give it power to persuade, if lacking power to control.” Unlike Chevron, which required courts to uphold reasonable agency interpretations of ambiguous statutes, Skidmore leaves judges with broad discretion to either adopt or reject an agency’s position.
For CEQ, which now operates without clear statutory rulemaking authority independent of Loper, this creates a precarious legal environment. Courts may uphold CEQ’s interpretations in some cases based on the agency’s technical expertise but reject those same interpretations in other jurisdictions where courts find the reasoning insufficient. For instance, guidance recommending the inclusion of cumulative climate impacts in environmental reviews might be treated as persuasive by one circuit, while another may find it outside the bounds of NEPA’s statutory text. The result is a fragmented landscape in which CEQ’s influence depends heavily on judicial discretion and ideology. As Justice Kagan warned in her dissent in Loper Bright, the shift away from Chevron and toward Skidmore may invite even greater instability:
“The majority’s prescribed way of proceeding is no walk in the park. First, the majority makes clear that what is usually called Skidmore deference continues to apply. Under that decision, agency interpretations ‘constitute a body of experience and informed judgment’ that may be ‘entitled to respect.’ If the majority thinks that the same judges who argue today about where ‘ambiguity’ resides are not going to argue tomorrow about what ‘respect’ requires, I fear they will be gravely disappointed.”
This suggests that irrespective of the new agency deference standard, courts may still have wide latitude to interpret the boundaries of CEQ’s regulatory authority under Skidmore. In the absence of binding precedent, judicial decisions may instead reflect considerations such as legislative intent, broader policy implications, or differing judicial philosophies.
Eli Nachmany has joined the discussion on the Yale Notice & Comment blog about the interaction between the APA’s good cause exception, Loper Bright, and the Trump Administration’s efforts to root out existing unlawful regulations:
Cary Coglianese and Daniel Walters recently published an interesting Notice & Comment post about the President’s memorandum, suggesting that the move shows “just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world.” The authors ask: “Did Loper Bright Also Overturn Notice-and-Comment Rulemaking Procedure?” But this is not the right question. The APA’s “good cause” exception established the authority to bypass notice and comment before Loper Bright came down. The question, then as now, is whether delay would contravene the public interest. Loper Bright and the other cited cases merely help with the process of identifying the regulations that qualify for immediate repeal.
Following the law is any federal agency’s first priority. Indeed, in the words of the Supreme Court, “an agency literally has no power to act … unless and until Congress confers power upon it.” Even if a regulation leads to a policy outcome that some might like, that regulation cannot stand if it is inconsistent with either a law that Congress has passed or binding Supreme Court precedent.
The President’s memorandum directing the repeal of unlawful regulations is a win for the rule of law.
The Departments of the Interior and Commerce have proposed to rescind an Endangered Species Act rule defining “harm” because it “do[es] not accord with the single, best meaning of the statutory text” and instead they will “rest on the statutory definition of ‘take.'”
This proposal is in line with a White House directive to remedy existing overbroad and unlawful regulations, as I discussed here. But the rescission does not invoke the APA’s good cause exception to expediate repeal, as my colleague discussed here, and instead invites public comment.
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Cary Coglianese & Daniel E. Walters write in the Yale Journal on Regulation’s Notice & Comment blog:
With the ink barely dry in Loper Bright, we are beginning to see just how unsettled, and how unpredictable, the administrative governance game can be in a post-Loper Bright world. With a new memorandum, “Directing the Repeal of Unlawful Regulations,” President Donald Trump has made a bold new move, invoking Loper Bright (as well as other recent administrative law innovations like West Virginia v. EPA’s “major questions doctrine”) to claim authority to rescind scores of existing legislative rules without even following standard administrative procedures. Under the recent presidential memorandum, once an agency determines that a legislative rule is on its face unlawful “under” Loper Bright and other recent general administrative law cases, it must “finalize rules” rescinding those regulations “without notice and comment.” Depending on how readily and extensively agencies arrive at a conclusion that existing rules are no longer legally justified, this “review-and-repeal effort” could amount to a presidential power to force the repeal of large numbers of unwanted regulations that, up to this point, would presumptively have been required to be rescinded only with deliberate care that took into account public input.
Earlier this week, on April 9, 2025, President Trump issued a new memorandum entitled “Directing the Repeal of Unlawful Regulations.” The memo, which builds on directions set out in Executive Order 14219 (Feb. 19, 2025), instructs the heads of all executive branch agencies to prepare for repealing “facially unlawful regulations” after April 20, 2025.
AFP Foundation’s Ryan Mulvey published an article in the Yale Journal on Regulation’s Notice & Comment blog on how “Loper Bright will impact FOIA jurisprudence, specifically with respect to judicial review of agency use of Exemption 3.”
“Chevron is overruled.” With these historic words, Loper Bright eliminated Chevron deference. The resolution of all legal questions—including the meaning of withholding statutes used with the FOIA—should now be resolved de novo. Whether the use of extrinsic withholding statutes in the FOIA context is best understood as a matter of “reconciliation,” which might technically trigger review under Section 706, or “incorporation,” under Section 552, the same method for judicial decision-making applies across the board.
When a requester disputes that a record is protected by Exemption 3, a court is obliged to provide its independent, best judgment about the scope and application of the underlying withholding provision. Of course, there may be instances where “respect” for the agency’s position is appropriate. And Congress could, in theory, design a withholding statute to grant an agency express discretion to set the bounds of its reach. But even then, the general rule is de novo review, and the legal limits of the scope of the statute under review remain with the court to determine.