The questions surrounding the administrative state and its law are really big. They are institutional and constitutional, and they demand rigorous thought and engagement outside the Chevron box.
In a momentous decision, a panel of the D.C. Circuit (Judges Srinivasan, Tatel, and Williams; opinion by Srinivasan, partial dissent by Williams) has upheld the FCC’s “net neutrality” rule. Henceforth broadband providers will be regulated not as information providers but as a “telecommunications service” under Title II of the Communications Act. Among other things this entails “must carry” obligations and a command that the providers may not charge different rates to different content providers (in regulatory parlance, “paid prioritization”).
Over at Notice & Comment Nicholas Bagley has a characteristically timely and thoughtful piece on a recent D.C. Circuit decision in American Hospital Association v. Burwell (AHA). The precise issue (Medicare payments) is a bit in the weeds but it invites a much broader thought about AdLaw: somehow it never gives you a remedy that’s worth having. But that’s actually something courts could and probably should change.
We mourn, as we should, the loss of a truly great man. But we can’t do so in full measure—not now. While we can guess at the contours of a Nino-less Court, the horrors will become palpable only over the years. In any event Harry Reid (Frank Underwood without the charm) is leaving no time for decorum, let alone mourning.