We Called It: The SBA's Weak Case for Killing the Title II Web Rule
Loper Bright v. Raimondo, that someone would eventually use it to attack the DOJ's Title II web accessibility rule, and we said the attack would probably fail. Last week, the Small Business Administration's Office of Advocacy made exactly that move. In a on the DOJ's , Advocacy urged the DOJ to narrow the 2024 rule, but used an argument that would cause it to be revoked entirely under Loper Bright and West Virginia v. EPA
The Argument and Why It Fails
The theory is that Congress never clearly authorized the DOJ to regulate website accessibility, so the rule cannot survive after Loper Bright. The problem is that Loper Bright lets courts police agencies that act without a clear delegation. Title II is the opposite case. Congress expressly directed the DOJ to write Title II implementing regulations. This is not an agency looking for gaps; it is the DOJ doing precisely what Congress told it to do.
The only real seam we ever identified was the distinction between regulations and technical standards: Congress told the DOJ to issue standards for "facilities and vehicles," and websites are neither. But that argument fails too, because the DOJ did not invent a standard. It adopted WCAG, an established consensus guideline developed by the W3C. Adopting an existing external guideline is ordinary regulatory practice, not developing technical standards. And West Virginia v. EPA does not fit. The major questions doctrine targets agencies that claim vast, unheralded power from vague or ancient statutes. Congress specifically told DOJ to develop implementing regulations for state and local government programs, services and activities that impact users with disabilities. While that may appear like pretty broad territory, Congress was quite clear in telling DOJ to do it.
An Atomic Bomb Where a Mousetrap Would Do
small governments. A large state could raise the identical challenge tomorrow. That means that, if DOJ accepts Advocacy's constitutionality argument, they would have to pull the entire rule-- not just carve out small governments.
Here is what SBA may not have thought through. Killing this rule does not just relieve small governments. It makes web accessibility impossible even for governments that want to do the right thing. Web accessibility runs on a chain of compulsion. Vendors do not build accessible products unless their customers consistently demand it. Governments do not consistently demand accessibility unless a regulation compels them to. Pull the regulation out and the chain breaks: governments stop requiring accessibility, vendors stop building it in, and accessibility quietly evaporates.
The reason why government accessibility has failed until now is that we haven't had this chain in place. Vendors have other things to worry about than building accessibility features that only one or two clients request. Only when every customer starts demanding it does accessibility become an existential need.
Almost no one will stand up and say that government websites should be inaccessible to people with disabilities. Unfortunately, that's exactly the place that SBA's argument puts us in. That kind of Advocacy isn't just bad policy, it's bad lawyering.
Why Is the SBA Even in This Room?
government websites? Title II covers state and local governments, not small businesses. Advocacy's prominent seat at this table needs a justification it never offers. The implied premise, that this rule somehow threatens small business, does not track the law. As , Title II and Title III are entirely separate regimes, built on different constitutional foundations, and a Title II rule for governments has no bearing on whether a Title III rule for private business ever appears. The
What Needs to Happen
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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