Why Are Trump Regulators Working So Hard to Dismantle Supreme Court’s Rollback of Regulatory Power?
Conservatives popped the champagne corks when the Supreme Court dismantled “Chevron deference” in the 2024 case of Loper Bright Enterprises v. Raimondo. Why, then, is the Trump Administration, led by Federal Communications Commission Chairman Brendan Carr, now working overtime to reverse that ruling and restore bureaucrats’ expansive authority over American business?
Before Loper Bright, federal regulatory agencies exercised growing discretion in how they interpreted – and inevitably expanded – statutory powers. This came to be known as Chevron deference, meaning deference to agencies’ interpretation of how to administer the law.
Loper Bright brought that freewheeling era to an end by restricting agency actions to the letter of the law. Now, in what will one day be seen as a conservative own goal, Chairman Carr is quietly restoring the power of the administrative state to boss business around.
This is happening through the FCC’s handling of Nexstar’s acquisition of TEGNA’s network of television stations. By law, no owner can control stations that reach more than 39 percent of American households. The Nexstar-TEGNA deal would create ownership of 265 stations serving about 80 percent of American households.
One can argue that this law is antiquated, given the importance of streaming and other internet-based sources for entertainment and news. But it is still the law. Does that mean anything anymore?
Peter Roff, writing in a syndicated piece:
Instead of enforcing the law, the FCC’s Media Bureau – filled with unelected staffers and with no vote of the full Commission – simply waved it.
That move was unlawful and strategic. Bureau actions are not final Commission decisions, meaning the FCC and Nexstar are trying to dodge meaningful judicial review. If they succeed, Loper Bright will stand for very little. Regulatory agencies won’t have to reinterpret statutes because they’ll be free to ignore them.
One unintended consequence is that the FCC’s move has ensnared Nexstar in a morass of litigation. Roff describes what will be the lasting unintended consequence of the Trump Administration’s regulatory overreach:
Conservatives once warned relentlessly about unelected bureaucrats accumulating unchecked power, regardless of whether or not they were on your side. Loper Bright was supposed to bring an end to that. Instead, the FCC is testing a dangerous new theory: that agencies can sidestep Congress and the courts as long as they move fast enough.
Add to this the willingness of Chairman Carr and Federal Trade Commission Chairman Andrew Ferguson to use their regulatory heft to try to police journalism. Carr held up Paramount’s merger with Skydance Media until the latter paid $16 million to the Trump presidential library project over President Trump’s specious, nuisance lawsuit over how Paramount-owned CBS News edited an interview with Kamala Harris during the campaign. Ferguson is threatening Apple News with regulatory action based on the risible claim that its curation of liberal-leaning news sources is actionable as a consumer violation under that outlet’s terms and conditions.
Not even the Biden Administration, which secretly censored conservative content on social media, dared to claim the authority to publicly regulate journalism and First Amendment activity.
On the economic side, the Trump Administration is busy importing China’s approach to state capitalism, with the government taking large stakes in a number of companies and business deals, from Nvidia’s sale of advanced chips to a “golden share” of U.S. Steel.
And now Carr is renewing agencies’ administrative power – in this case, an outright defiance of the law – undermining the Supreme Court’s rollback of Chevron deference.
When progressives one day return to power, they should be pleased at all the new levers of power that the Trump Administration has installed for them. But for conservatives, it won’t be pretty.