New Boss, Same as the Old Boss?
Markets continue to contemplate what a new regulatory approach might look like.
This article is from March but it highlights some of the risks in the next Administration. No matter who is elected, we may continue to see the heavy-hand of politically-motivated antitrust enforcement. This time enforcement will be used to attack Big Tech for its perceived political alignment with the left. It wasn’t good when Khan did it. It won’t be good when the other guy does it, either.
‘"This is one of the most dangerous companies in the world. It actively solicits and forces left-wing bias down the throats of the American nation," Sen. J.D. Vance, R-Ohio, told FOX Business’ Maria Bartiromo in a "Sunday Morning Futures" exclusive interview.’
What the end of the Chevron deference means for regulatory power
There may be a growing sense that if the statute is ambiguous, then the agencies cannot do anything. Loper may be the stick that a new Administration uses to justify massive cuts in the bureaucracy.
Imagine having to go through the entire Federal Register and justify a rule as being consistent with clear statutory language and requiring that failure to do so means jettisoning the rule.
It’s not difficult to envisage.
‘What happened here is that there's always a role for judges if the government, if the administrative agencies try to misbehave and misinterpret a clear statute. We need the courts to be able to step in and say, you got it wrong, but when there is this ambiguity that you described, because Congress can't, doesn't have the bandwidth to deal with everything.
‘It doesn't have the foresight. It doesn't have the expertise to write laws that are as detailed as the regulations have to be. So they ask agencies to help in this task. And when you have a genuine question that has been delegated to an agency, then it is right that the agency has some policy discretion.
‘And this is what irritated the conservative legal movement after a while, because while this first decision was from the Reagan administration, and it weakened the Clean Air Regulations, during the Clinton administration and the Obama administration, it was possible to use the same neutral doctrine to do more with the environmental laws, to interpret the ambiguity in favor of greater protection, not less’
Advocating for climate and clean air rules after a Supreme Court power grab
It may not be a ‘tsunami of lawsuits’ but an earthquake of administrative review that opens up the earth and swallows up sections of the federal government whole. That’s a bold prediction. The first line of defense will be the civil service.
Is this why Project 2025 puts so much emphasis on ways to neutralize the bureaucracy? They don’t want to make the same mistakes as the first time they tangoed with the civil service.
Is this why Schedule F is so contentious?
‘Describing the combined implications of these decisions, Justice Jackson warned of a coming “tsunami of lawsuits against agencies” that “has the potential to devastate the function of the Federal Government.” Together, these four cases could devastate the proper functioning of administrative agencies. They make it harder for agencies to do their jobs, produce uncertainty and instability in the law, embolden opponents of environmental regulation, and give both individual lower court judges and the Supreme Court greater control over the fate of regulations.’
Artificial Intelligence Regulation Threatens Free Expression
Does AI (or, rather, the companies that own the AI technology and the customers who employ it) have First Amendment rights? Should AI be forced to “align with specific ideological values and norms that are antithetical to broader expression”?
‘With AI set to impact so much of our lives, the decisions over what kinds of speech AI should or should not be allowed to generate will likely become far greater battles than those fought over social media content policies. For many users, the disastrous release of Google’s Gemini AI, which manifested clear ideological requirements in its coding, raised these concerns. While a private company has every right to develop products that present its viewpoints and biases, users are free to leave products that don’t meet their needs and choose alternative products that serve them more effectively.’
Online Privacy and Other Areas Where Supreme Court Rulings Could Reshape Marketing Regulation
The FTC is in the crosshairs of the deregulatory hunters.
‘A successful lawsuit taking advantage of the Loper decision, however, could begin changing the regulatory landscape, said Anjali S. Bal, associate professor of marketing at Babson College. “The ruling is basically saying the government can no longer be confident that they have the right to regulate,” she said.
‘Experts say lawyers and industry groups will begin challenging the FTC’s top regulatory priorities, as listed below.’
If Larry Fink is arguing that growth is our only way out of the current fiscal morass, then it must be a mainstream idea. If he says that a key to unleashing growth is deregulation, then it’s absolutely safe to get into the pool. He doesn’t exactly have a track record of leading with his multi-trillion dollar chin.
‘The BlackRock CEO argued that the US economy must keep growing, or face the repercussions of runaway overspending. To do that, it's essential that the country frees its business environment of too-strict oversight, he said.’