Throughout the last decade, various efforts have been developed to place technology experts from academia, industry, and the executive branch into Congress, including the TechCongress Fellowship. As technology becomes increasingly tied to many national policies, some technologists argue that Congressional leaders should employ and consult more staff that have expertise and knowledge in these emerging areas.
This expertise can be particularly useful when drafting legislation and delegating authority to federal agencies that regulate these emerging technologies, as Congress has been attempting to do this session. The Supreme Court’s recent 6-3 decision in West Virginia v. EPA, which held that the Environmental Protection Agency (EPA) lacks the authority to require coal-fired power plants to shift to cleaner fuel sources, should bring larger attention and urgency to these efforts.
THE MAJOR QUESTIONS DOCTRINE
In one of the Court’s latest and closely watched administrative law rulings, the majority explicitly invoked the major questions doctrine for the first time in a majority opinion to hold that the Clean Air Act did not give clear authorization to the EPA to make such a significant move. Often, administrative agencies must interpret statutes that grant them regulatory authority; however, if challenged, courts may need to review such interpretations to determine if an agency has exceeded its authority. Typically, and especially since the Court’s 1984 decision in Chevron v. NRDC, courts will defer to an agency's interpretation of an ambiguous or broad statute.
The major questions doctrine, contrarily, rejects agencies claims of regulatory authority if the courts consider the issue to be of “vast economic and political significance” and if the courts believe that Congress has not clearly empowered the agency authority over the issue. In West Virginia v. EPA, Chief Justice John Roberts writes that if Congress wishes to make such a significant decision concerning system-wide energy use, they must do so explicitly by providing “clear authorization” to the EPA. While the majority narrowly tailored their decision to the EPA, some experts argue that the Court’s reasoning could have broad implications for other federal regulators, including agencies that oversee the internet and emerging technologies.
WHAT DOES THIS MEAN FOR FEDERAL TECH REGULATORS?
The Court's invocation of the major questions doctrine has an “I know it when I see it” quality, since the Court opted to provide little guidance as to what lower courts should consider when evaluating whether an agency rule is of vast economic and political significance. Consequently, the contours of the doctrine will not be known until the Supreme Court decides additional cases.
Enhanced privacy protections for consumers and tighter regulations for technology companies are both issues that Congress is currently considering and that could both be argued to be of vast economic and political significance. The major questions doctrine acceptance by the Court signals to Congress that, when addressing these concerns, they should unambiguously delegate regulatory authority to any respective agency or risk the legislation being struck down in court.
However, in order for Congress to provide unambiguous statutory directives for federal agencies to interpret, those advising lawmakers and drafting the legislation need to have a working knowledge of the complex and rapidly-evolving field. After all, a key reason that Congress makes broad delegations is so that experts within the respective administrative agency can respond to new and big problems without Congress stepping in to clarify legislation. Under the major questions doctrine, however, lawmakers need to be able to reach a consensus on clear delegations and anticipate emerging problems.
A CALL FOR MORE TECHNOLOGISTS ON CAPITOL HILL
The ruling underscores the need for technologists to step up to the table and get involved in policy making. Organizations like TechCongress that are committed to bridging the divide of knowledge between tech spaces and DC can play an important role in meeting this moment. Lilian Coral, the Knight Foundation’s director for national strategy and technology innovation, contends that, “Understanding the mechanics of current, new and emerging tech is critical for governing in the 21st century…By increasing technical expertise in Congress, TechCongress fellows help our elected officials better assess how technology impacts Americans’ lives.”
Leveraging expertise and knowledge in these emerging areas, technologists with an interest in policy can help congressional offices respond to these pressing issues. Hopefully, as Congress continues to work on potentially transformational tech policy this session and beyond, more technologists answer the call.
