[Below are the Introduction and Summary and the Conclusion to this latest FSF Perspectives. A PDF version of the complete Perspectives, with footnotes, is here.]

The D.C. Circuit Court's Open Internet opinionis a significant victory for the Federal Communications Commission and for the Obama Administration following a long string of losses in this area. The opinion is remarkable not for its result, which many had predicted, but for the breadth of the agency's victory. At every turn, the court approached petitioners' arguments with a posture of deference toward agency action and showed considerable reluctance to ask the hard, searching questions that marked Judge Williams' partial dissent. While American administrative law generally gives agencies a presumption of correctness, the extent of this decision's deference is nonetheless surprising to those familiar with the FCC, which has a long history of withering under blistering D.C. Circuit scrutiny and a far worse track record at the court than most other agencies.

At least some petitioners immediately vowed to take their claims to the Supreme Court. Of course, because the Supreme Court takes only a small fraction of the cases that seek review each year, it is difficult to predict which petitions the Court will accept. But the Open Internet case presents one issue that might pique the interest of the Justices, and it's lurking in the very deference that was key to the agency's victory: the "major questions" exception to

Chevron.

The Supreme Court announced a "major questions" exception in the 2015 Affordable Care Act decision, King v. Burwell. But its origins go back to the Food and Drug Administration's efforts to regulate tobacco during the 1990s. In essence, the Court explained then that

Chevron's assumption that Congress implicitly delegated to agencies the authority to resolve statutory ambiguities should not apply in cases involving "deep economic and political significance." But the precise contours of this murky exception remain unclear. The D.C. Circuit's Open Internet opinion provides an excellent vehicle for the Justices to provide greater detail and helpful guidance on a question that goes to the very heart of the rule of law and the role of the courts in our constitutional republic. To be specific, the question to be put to the Supreme Court goes to the role of the courts, as Chief Justice Marshall put it over 200 years ago in Marbury v. Madison, "to say what the law is."

The D.C. Circuit's Chevron analysis, like much of the other analysis in its decision, is perhaps unsurprising given the current state of American administrative law. But the decision overall illustrates the ease with which agencies can reverse long-standing statutory interpretations and upset well-settled expectations of regulated entities in pursuit of their newfound policy objectives. The FCC is hardly the only agency to engage in this type of overreach: in the past two years alone, significant controversies have arisen with regard to the EPA (greenhouse gases, clean power plan), the Department of Education (transgender rights), and the Department of Homeland Security (immigration) as these agencies have used ambiguous statutory or regulatory language to bypass Congress and enact sweeping regulatory changes.

The "major questions" exception in King v. Burwell may be viewed as part of a larger movement by the Court in recent years to cabin the Chevron doctrine and agency deference in general. It remains to be seen whether the Court will take advantage of the opportunity the FCC has given it to provide additional guidance on the scope of the exception. If it does, the resulting decision has the potential to safeguard continued innovation in broadband markets, which is important in and of itself. But it also has the potential to bend the arc of administrative law in the direction of restoring to the courts their proper role with respect to the review of agency decisions. This is a fundamental rule of law issue for, as Chief Justice John Marshall declared over 200 years ago in Marbury v. Madison, "[i]t is emphatically the province and duty of the judicial department to say what the law is."

When the petition for certiorari arrives at One First Street, the Justices will have an opportunity to land a blow for the rule of law. I hope they seize it.