Legal Update: June 2024

The biggest news in digital accessibility this month has nothing to do with digital accessibility: on Friday, June 28^th, the Supreme Court overturned Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). A quick search of our site reveals that I have talked a lot about Chevron—and what overturning it would mean for digital accessibility. In fact, just two weeks ago, I talked about it extensively in the context of the Supreme Court’s decision in Garland v. Cargill, 144 S. Ct. 1613 (2024). All of my earlier posts presaged the inevitable which happened on Friday—the Chevron decision is now overturned in its new decision Loper Bright Enterprises v. Raimondo, 2024 U.S. LEXIS 2882 (2024)

Unless you’ve been living under a rock for the last 20 years, you’ll know that there has been frustration at our government. A lot of that frustration has to do with the complex regulations created by “the swamp”—the administrative state of government attorneys and policy officials in federal agencies who try to make our government function. Whether you see yourself on the political left or right side of the spectrum, federal agencies serve an important function of administering the laws that Congress creates. Because laws are always vague, that means that they have to “fill in the gaps.”

Need proof? Just look at the ADA, as written by Congress. While you’re looking over the statute, try searching for basic concepts like, “service animal” or “sign language” and see what you come up with. Answer? Zilch. Zero. Nada. All of the basic protections that we take for granted were provided by the Department of Justice in its implementing regulation. Into the basic ADA requirement to “make reasonable modifications in policies,” DOJ’s regulation added a requirement to accommodate service animals. And into the phrase “auxiliary aids and services,” DOJ added the requirement for effective communication, which included sign language interpreters.

The Loper Bright decision dealt with another ambiguous law. The case concerned the power of the National Marine Fisheries Service (NMFS), an agency under the Department of Commerce, to implement and enforce the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which enabled the NMFS to set specific limits on fishing in coastal waters. The MSA also required several groups of fishermen to bear a portion of the costs of maintaining “observers” onboard ships to ensure that the rules were followed but Atlantic herring fishermen were not included in this group. The NMFS created a regulation that required Atlantic herring fisherman to pay for similar observers and the herring fisherman challenged the regulation.

The herring fisherman would lose if the court followed its earlier Chevron case. The Chevron case applies where Congress is silent or ambiguous about a specific issue—just it was with not covering herring fishermen in the MSA. In such cases, Chevron requires courts to ask two questions. First, courts must ask if the law was clear or if it left ambiguity or a gap. There was a gap because the law did not specify who paid for observers for herring fishermen and NMFS had the clear authority to implement the MSA. Second, the court must ask if the rule or interpretation is “rational” or “reasonable.” This generally means asking whether the agency’s interpretation is not inconsistent with the clear statutory language. This second requirement was also met because imposing an extra fee to cover the cost of onboard observers was not inconsistent with the statute’s language. If both tests are met, then the court must defer to the agency’s interpretation even if the court disagrees with it.

Of course, in Loper Bright, the Supreme Court rejected Chevron. Instead, Chief Justice Roberts stated that the courts were to be the final interpreters of laws and that they never had to defer to federal agencies' interpretations. According to the Chief Justice, courts should only “respect” agency interpretations and use them to help inform the court’s independent interpretation of statutes.

Fundamentally, Justice Robert’s opinion belies a basic mistrust of federal agencies. The entire opinion comes down to a pair of sentences in the middle of the opinion.

Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.

Loper Bright Enterprises, at *45. There are two huge problems with this analysis. The first problem, of course, is that it is undemocratic; it allows one (unelected) federal court judge to substitute her interpretation of how a statute can be read for the democratic notice-and-comment rulemaking process that federal agencies go through when they create a regulation. After all, agencies don’t just develop regulations out of thin air. Instead, they publish a draft regulation, receive dozens (or maybe hundreds) of thoughtful comments from the public, and publish a regulation that explains how they came to their decision. The second problem is that the Loper Bright opinion invites every federal court judge to inject their own (separate) opinions over every regulation, potentially bringing our federal government to a standstill. Remember all that nonsense of having mifepristone banned across the country (based on the opinion of one district court) only to have it allowed later when the case made it up to the Supreme Court? Overturning Chevron could make this a daily occurrence for every federal regulation. The Supreme Court may have drained the swamp in the federal agencies, but it created a far, far worse one in the federal judiciary.

How Does Loper Bright Affect Digital Accessibility?

When I first heard that Chevron might be overturned, I immediately thought about DOJ’s web accessibility regulations. Now that the Loper Bright has come down, here’s my take.

First, I think that DOJ’s Title II regulation is relatively safe. As I mentioned earlier, no one questions that Title II covers web-based programs, services, and activities offered by state and local governments. While the Loper Bright opinion discarded Chevron deference, the last paragraph in the Court's opinion offers the ADA regulations a glimmer of hope.

Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.

Loper Bright, at *61-62 (emphasis added). Congress didn’t tell the NMFS to create regulations implementing the MSA; instead, the NMFS created a regulation to fill a gap left in the statute. By contrast, Congress very clearly told the Department of Justice to create implementing regulations under Title II when it passed the ADA. This means that the courts should defer to the DOJ’s regulation—so long as its regulation is consistent with the delegation of authority.

That last clause may be the Achilles’ heel of the new Title II web accessibility regulation, however. This is because Congress tends to be very clear when it wants an agency to create technical standards—such as when it directed the Access Board to create the ADA design standards or when it directed the Access Board to create the Section 508 technical standards. Congress included a special paragraph directing the Attorney General to create regulations and "include standards applicable facilities and vehicles" consistent with the Access Board's regulations. A clever attorney could argue that Congress never delegated authority to DOJ to create technical standards for websites because websites are neither "facilities" nor "vehicles." When it adopted the Web Content Accessibility Guidelines (WCAG) for state and local government websites, DOJ was setting standards for something completely different. Because Congress didn't tell DOJ to issue standards beyond vehicles and facilities, its adoption of WCAG falls in a gap or ambiguity that Loper Bright covers-- and that a clever attorney could use that fact to have the regulation invalidated.

A Title III web accessibility regulation for private sector websites would also be vulnerable for the same reason if it included WCAG or any other specific standard because Congress used the same language as in the Title II regulation directing the Department of Justice to create regulations and "include standards applicable to facilities and vehicles. However, a Title III web accessibility regulation is far more vulnerable than a Title II web accessibility regulation because the Department of Justice would also have to decide whether websites are "places of public accommodation." That's a huge ambiguity under the ADA and the cause of a major split in the circuit courts. It's easy to imagine a defendant arguing that this question was outside Congress’s delegation of authority.

In both cases, the Department could argue that it wasn't creating a website standard when it adopted WCAG. Instead, WCAG is a set of guidelines and state and local governments don't have to meet WCAG if they can show that doing so has "minimal impact on access" for people with disabilities. This argument will likely not succeed because the regulation first requires WCAG compliance and then allows entities to avoid WCAG compliance if they can show doing so has minimal impact on access. A safer (but less effective) DOJ could have written the regulation would have been to require websites to provide effective communication, and that conformance with a set of guidelines like WCAG would be considered a "safe harbor" in providing effective communication.

The Department might also try to argue that "adopting" WCAG isn't the same as "issuing" standards. I also don't think that argument is a winner because rulemaking agencies frequently adopt or incorporate by reference standards (e.g. ISO, ANSI, etc) created by other bodies.

How Will Loper Bright Affect Future Federal Digital Accessibility Laws?

When I first read the Loper Bright opinion, I thought any regulations were fair game for litigation. Instead, the Loper Bright opinion applies mainly to regulations where Congress either doesn't tell an agency to create implementing regulations (so-called "implicit delegation") or doesn't do a very good job explaining where regulations are needed (badly defined gaps and ambiguities). Loper Bright doesn't apply where Congress specifically directs an agency to develop regulations.

This means that Congress must be much more detailed in future statutes and outline exactly when regulations are needed and what they must cover. I don't see that happening in this age of deeply partisan politics. History should show that Loper Bright only yielded two unpleasant outcomes: either more political logjams as Congress bickers over where to draw the line delegating authority to federal agencies or endless litigation where those lines weren't precisely drawn.

This Shouldn't Be a Political Decision

It's sad that the Loper Bright decision came down to politics (the 6-3 decision was split on political lines) because agency deference shouldn't come down to politics. After all, the Chevron opinion was originally hated by liberals because it reinforced Reagan-era cuts to the Clean Air Act. You can also be certain that, should the Republicans win the presidency in November, Democrats will happily use Loper Bright to dismantle or limit any changes to regulations that the Republicans make. The net effect is that the federal government will become much less efficient. The federal government isn't going away; now, the inefficiency of our government will loom larger than ever before.