Supreme Court blocking measures hinder progress

On the surface, it looks like a classic conservative move, reining in bureaucracy and giving business a chance to challenge government when it gets in the way. But critics of the Supreme Court’s decision last Friday to overturn the so-called Chevron deference say the move will create a logjam that will stall necessary regulations in a society where AI-powered technology is changing the way we live at breakneck speed.

The court voted 6-3 along conservative and liberal lines to end the practice, which required judges to enforce federal agencies’ interpretations of U.S. laws deemed ambiguous. Critics said the doctrine gave the bureaucracy too much power in crafting regulations, while supporters said it ensured that laws were reviewed by experts in the relevant fields. The court essentially said the bureaucracy had no business making or interpreting policy, and placed those burdens on Congress and the courts, respectively.

Yet those in the thick of the government’s power struggle say the inevitable result is a logjam of challenges to laws enacted by elected officials incapable or uninterested in writing good laws. Hence the issue of ambiguity. To ensure that laws stand up to the scrutiny of the many critics who always crop up when new laws are enacted, they would have to be carefully crafted to ensure they are not ambiguous. Frankly, the track record on this is not good, largely because of the Chevron bias.

Until Friday, Congress (or, more accurately, the army of staffers and assistants who do the actual work) could have a vague idea of ​​what it wanted to accomplish, and leave the figuring out how to implement it to the experts in the bureaucracy involved. Once the bureaucracy was done, challenges to its work were limited by the Chevron rule, which instructed judges to rely on their expertise on the often arcane issues.

From now on, anyone will be free to challenge the new law in court, and it will be up to the courts, especially the judges, to decide whether the laws are clear and enforceable. The hurdles will start immediately and will be so great that any law affecting the basic workings of government can be challenged by anyone who thinks they are uncomfortable with it.

The general perception is that big industry is just waiting to stop any legislation that could cost them money with a lawsuit or two. Given the uproar that erupts in the aviation industry when new legislation poses this threat, it is inevitable that the FAA will get stuck in this litigation.

According to a lawyer we consulted, only new laws will be affected, so the laws we have learned to live with will remain. However, I would argue that no other area of ​​society is going through such fundamental changes as aviation, and the process of regulating those changes is already almost unworkable. Leaving the basic function of government to the courts will completely clog it up, right?

Maybe not. Maybe Congress will occasionally interrupt partisan politics to craft laws that work and are enforceable, removing the basis for legal challenges in the first place. And maybe the judicial system will rise to the challenges ahead and make sure that everything that goes before a judge is worth more than just saving industry a few dollars. And maybe I’ll get brown hair again.

If I were in the drone business, the automation business, aviation-related AI, or the eVTOL business, I would be paying special attention to how this ruling might impact my company’s already torturous path through the regulatory process. There are a lot of big names out there that you don’t want or want to control, and the Supreme Court just gave them bump stocks.