Last month, the United States Court of Appeals for the D.C. Circuit declined to reconsider its approval of the Federal Communications Commission’s “net neutrality” regulations. These rules, unsuccessfully challenged by telecommunications and other Internet providers, marked a reversal of course by the commission, which had previously applied a light touch when it came to regulation of the Internet.
Arguments about the wisdom of net neutrality and the FCC’s jurisdiction to regulate in this area are complex and fascinating matters I leave to more expert commentators. Judge Brett Kavanaugh’s thoughtful dissent from the decision in United States Telecom Association v. Federal Communications Commission, however, raises an important question that cuts across administrative law as a whole: When, if it all, should a reviewing court defer to executive branch agencies’ legal interpretations that implicate “major” questions of social and economic policy?
