Supreme Court Decision Overruling Chevron Is a Major Setback for Neo-Brandeisian Antitrust, ITIF Says

WASHINGTON—Following the Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo, which overruled its prior holding in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Information Technology and Innovation Foundation (ITIF), the leading think tank for science and technology policy, released the following statement from Joseph V. Coniglio, Director of Antitrust and Innovation, leading ITIF’s Schumpeter Project on Competition Policy:

The Supreme Court’s decision to overrule Chevron and its doctrine of interpretative deference to administrative agencies is a blockbuster ruling the significance of which cannot be overstated. It will have tremendous consequences not just for administrative law but the entire modern regulatory state.

Amidst the long march through institutions by progressives to capture the administrative agencies, now during the Biden administration, the Supreme Court has sent a clear signal that courts, not bureaucrats, have the purview to say what the law is.

The decision is a considerable blow to Chair Lina Khan and the broader neo-Brandeisian antitrust movement. Consistent with their poor record in the courts, the neo-Brandeisians have long held their deepest hopes in the expansion of the FTC’s unfair methods of competition (UMC) powers to challenge behavior beyond the scope of the Sherman and Clayton Acts.

As a result of the Supreme Court’s ruling, the FTC will not be entitled to required deference regarding its interpretation that in the face of ambiguity the FTC Act bestows the agency with UMC rulemaking authority, an issue which is currently making its way through the courts. Moreover, the interpretation of unfairness underlying its Section 5 Policy Statement is also wide open for judicial scrutiny when the time comes.

Contact: Sydney Mack, [email protected]