Last year, the Supreme Court issued its landmark decision in West Virginia v. EPA in which the Court reinvigorated the Major Questions Doctrine of administrative law. Given the Federal Trade Commission’s efforts to expand its rulemaking powers under Section 5 of the FTC Act and the likely return of the net neutrality fight at the Federal Communications Commission once a third Democratic commissioner is confirmed, on June 20, 2023, the Federalist Society hosted a webinar to discuss how the reinvigorated Major Questions Doctrine may impact tech and telecom policy.
In this webinar, I was fortunate to moderate an outstanding panel of lawyers with extensive government experience at the highest level, including:
Ian Heath Gershengorn, Partner and Chair, Appellate & Supreme Court Practice, Jenner & Block LLP; Former Acting Solicitor General;
Thomas M. Johnson, Jr., Partner and Chair, Issues & Appeals Practice, Wiley Rein LLP; Former General Counsel, Federal Communications Commission;
Maureen K. Ohlhausen, Partner and Chair, Antitrust & Competition Practice, Baker Botts LLP; Former Acting Chairman and Commissioner, Federal Trade Commission; and
Christopher J. Wright, Partner and Co-Chair, Issues & Appeals Practice, Harris, Wiltshire & Grannis LLP; Former General Counsel, Federal Communications Commission.
Given the breadth and complexity of the issues raised by the Court’s ruling in West Virginia, our conversation covered a lot of ground.
We began by discussing the legal contours of the Major Questions Doctrine (pro and con). Having established an analytical baseline, our conversation then drilled down into the specifics. For example, we discussed how the FCC and the FTC might reckon with the Major Questions Doctrine when they attempt to promulgate new rules. We also tried to identify current and expected rulemaking proceedings where the Major Questions Doctrine may come into play at the FTC and FCC.
Our discussion concluded with some thoughts about whether the Court’s ruling in West Virginia would have any constraining effect on the Biden Administration’s aggressive tech and telecom regulatory agenda. While our panelists generally believed that it should, few were particularly optimistic that it would.
For those who may have missed the webinar when it was originally streamed, the full video, along with assorted podcast platform links and a full transcript, are available on the Federalist Society’s website.
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at email@example.com.