In this short Essay, I take the opportunity to highlight one further potential asymmetry that may yet emerge from the Supreme Court’s application of Chevron’s many doctrines. Drawing on then-Judge Kavanaugh’s disdissental from the D.C. Circuit’s decision affirming network neutrality rules, I suggest that there is at least one vote on the Supreme Court—and perhaps more—for an asymmetric approach to the major questions doctrine. Moreover, I demonstrate how asymmetry in this context is deeply irrational. As applied to network neutrality, the asymmetry has at least one of two effects. One, it might simply favor one large industry over another, subjecting one inter-sector wealth transfer to heightened scrutiny, while treating an analogous wealth transfer—in the opposite direction—deferentially. But the judiciary is not typically in the business of favoring one industrial sector over another. Two, it subjects consumer-protection devices to increased regulatory scrutiny, thereby shifting the costs and burdens of overcoming a regulatory default to those entities—consumers—who can likely least afford to bear them. Hence, in more general terms, Justice Kavanaugh’s unbalanced approach to the major questions doctrine tends to undermine many of the values— accountability and expertise, among others—that agency policymaking has long served.
Tejas N. Narechania,
Symmetry and (Network) Neutrality,
Mich. L. Rev. Online
Available at: https://repository.law.umich.edu/mlr_online/vol119/iss1/5