The Supreme Court said in Loper Bright that previous cases decided under Chevron are still good law. But this lawsuit challenged a brand new FCC order that had not been previously litigated.
The court is saying, if we had litigated this (and most likely upheld it, because Chevron) then it could stand now, even after Loper Bright. But if we never looked at it before, then we get to use the new rule.
That doesn't make a lot of sense.
Like, the counterfactual is they litigated and upheld the order, so it's safe. But because it was never challenged before, it can be challenged now. Only orders that were challenged are safe.
It would make more sense to do it the way I thought: everything, even if it wasn't challenged, that would have relied on Chevron still can rely on Chevron. That gives "the benefit of the doubt" to the agency that passed the regulation in the Chevron era.
In the new scheme, the regulators have to comb through all their orders going back decades, figure out which ones were never litigated, and figure out how to defend it without Chevron.
You're coming at this from the perspective of "it's weird to change the rules after the fact" which is reasonable but not how stare decisis works. The principle is that once something is decided once, it should be decided the same for all other parties litigating the issue unless and until the precedent is overturned. If something hasn't yet been litigated, it is still an open question.
It would be weird if, for example, the Supreme Court said that gay marriage is constitutionally protected but all the existing laws banning it could stand because they were enacted earlier.
It would be equally weird if the Supreme Court said that gay marriage is constitutionally protected, but states that have previously successfully litigated challenges against their laws can keep forbidding it..
On the contrary, I'd expect the Supreme Court to say exactly something like that when it suits them. The Supreme Court throughout history has invented as many hoops as they needed and then jumped through them in order to appeal to political winds and public opinion.
> figure out which ones were never litigated, and figure out how to defend it without Chevron.
I'm fairly certain the regulated entities will take this upon themselves and will create the lawsuits that provide the opportunity for the administrative agency to defend their position.
If they're that concerned, then they should get with Congress, and get a new law passed. This is precisely what Chevron was meant to create. Administrative agencies simply cannot unilaterally create and enforce law anymore.
The federal register grows every year by an exceptional amount. Congress really enjoys the fact that you believe, for no particularly good reason, that they "do nothing." It really clears the road for their rich friends agendas.
Everything can be litigated again. However eventually the courts have to slow that down. The courts decision is saying that Congress may not have done their job because the agency ruling was what they would have done anyway and so the courts don't want to overturn everything right away. I'm sure most of the previous decisions will be litigated (if congress doesn't change the law first), but they don't want thousands of cases to come before congress has a chance to make law what they should have done. If you challenge the rules now you have to convince the courts that congress wouldn't have passed that rule as law, which is harder (but not impossible).
OTOH, I think/hope the courts are sending a message to congress that they need to work out more details in the laws.
