I'm delighted to pass along this item from Prof. Thomas Merrill (Columbia), whom readers might remember as a guest-blogger from a couple of years ago, and who is the author of The Chevron Doctrine: Its Rise, and Fall, and the Future of the Administrative State (2022):
In Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the petitioners are asking the Supreme Court to overrule the Chevron doctrine. Oral argument in the cases included multiple references to a decision called Brand X, short for National Cable & Telecommunications Association v. Brand X Internet Services, decided in 2005. The petitioners could not stop reminding the Court about Brand X.
Brand X held that when a court decides a question of statutory interpretation that would be eligible for Chevron deference if decided by an agency, and the agency subsequently disagrees with the judicial interpretation, the courts are obliged to follow the agency interpretation, not the prior judicial interpretation. Justice Scalia, in dissent, described Brand X as a "breathtaking novelty: judicial decisions subject to reversal by executive officers." He added that this was "probably unconstitutional."
The petitioners in the two pending cases were eager to remind the Court about Brand X in part because of the presumed aversion of the Justices to the idea that an administrative agency can "overrule" a decision of an Article III court—including potentially the Supreme Court.
Undoubtedly, they also thought Brand X was a perfect illustration of the instability in the law that they argue is caused by Chevron. Brand X upheld under Chevron an interpretation of the FCC during the Bush II administration that internet services providers are not subject to common carrier obligations under the federal communications laws. This interpretation, in turn, was later reversed by the Obama FCC, which was then reversed again by the Trump FCC, which itself is now slated to be reversed by the Biden FCC. In short, Brand X led to flip-flopping about the status of internet service providers with every election of a President of a different political party.
