//  1/12/18  //  Commentary

I noted earlier that the success of the challenges to the FCC’s net neutrality order decision will turn, in part, on whether courts defer to the agency’s determination that internet access is best classified as an “information service” (rather than, say, a “telecommunications service”).

We also know that “Chevron deference is not warranted where the regulation is ‘procedurally defective.’”

What does this have to do with the FCC’s net neutrality decision? There’s no obvious procedural flaw in, say, the amount of time the FCC allowed for comments and replies. But there are serious questions about the integrity of the record upon which the FCC based its decision. Somewhere on the order of over one million comments were either misattributed to people, or attributed to fictional identities, or otherwise faked. Indeed, it seems that someone impersonated Sen. Merkley in a comment supporting the FCC’s action. Commissioner Rosenworcel has made an issue of this. But to little avail: The FCC does not appear to have investigated the integrity of its own record (or, if it has, it hasn’t revealed the results of that investigation), and, moreover, it has declined to assist state-led investigations into possible identity crimes associated with the #fakecomments.

So is an agency decision based upon a record containing a substantial number of falsified comments “procedurally defective”? I’m venturing beyond my core expertise, and I don’t think there’s a clear answer. It is hard to say that an agency can reach a reasoned conclusion from a corrupted record. But to so hold might create incentives to undermine agency action by sparking large-scale campaigns, like the one here, aimed at undermining the integrity of an agency’s record.

Perhaps the answer, then, lies in the adequacy of an agency’s response to the misinformation campaign. Here, the Commission was apparently aware of the faked comments and falsified identities: What, if anything, did the FCC do to filter the bad comments from the good? Were those efforts adequate to cure any defect in the record, and, hence, in its conclusions? If not—if the agency’s response was inadequate—then perhaps courts should decline to defer to the agency’s decision. After all, it is a “basic procedural requirement of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency ‘must examine the relevant data and articulate a satisfactory explanation for its action.’” But faced with data suggesting that its record was corrupted, the FCC has apparently done very little, except to note that those comments “in no way impeded” the Commission’s deliberation. But the FCC has not said clearly why that is so. And, in the end, the FCC relies upon an uncorrected record to support its order undoing net neutrality protections. That might matter.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

Take Care

Are There Five Textualists on the Supreme Court? If So, They’ll Rule for Transgender Workers.

5/6/20  //  Commentary

The Title VII cases before the Court present a fundamental question: are there really five textualists on the Court? We’ll find out soon.

Take Care