440: The Fellas at the Freaking FCC

Yeah, they do.

And the The constitutional issues are so entwined with the issues that we do have expertise on that we should be left to adjudicate our own constitutional violations, which is not an unheard of claim for the government to make, but I think rarely an effective one.

Well, yeah, and it ignores the fact that the FCC has no particular expertise when it comes to the First Amendment.

They do have a number of First Amendment – judgment over First Amendment claims.

And that is sort of an echo of the Loper-Bright decision from a couple of terms ago, although that went to whether or not courts should defer to statutory interpretations.

If courts, as the Loper-Bright decision held, are not required to defer to statutory interpretations by federal agencies, they sure as hell don't defer to regulatory agencies when it comes to constitutional issues.

And so this is just a case in which the FCC is really out of its depth.

The other problem is that the FCC is an agency that was essentially built for jawboning.

I mean, think about it.

We are licensing organs of the press, broadcasters.

Now, we can go into the historical reasons for that, doesn't really matter.

But the point is, when you're talking about giving government power over the very institutions that the Constitution says have to be hands off, you have to ask yourself, what could possibly go wrong? Well, pretty much everything.

And so there is a history with the Federal Communications Commission of engaging in what they was euphemistically called regulation by raised eyebrow And the problem is that those kinds of informal regulations, those regulations by threat, are historically hard to prove.

They're hard to prove because so much of the pressure is exerted in back rooms or behind closed doors.

And so you have really hard issues of proof.

Here with this administration, we have regulation by raised fist.

Nothing is a secret.

These people shout their threats from the rooftop.

And it's one of the reasons why, as I said earlier, that the administration and the chairman of the FCC should just keep talking because every word they say makes ABC's case stronger.

So getting back to your question, so you mentioned two cases, Thunder Basin and Axon, right? So Thunder Basin is the general rule that where there is a statute that channels claims, you don't get into federal district court before the administrative process is over unless there's an irreparable injury, the administrative process is entirely collateral to your claim that you want to bring in the district court, and you can show that the agency doesn't have expertise.

That's the general rule.

Again, in Thunder Basin, even the court acknowledges that there's a subset of constitutional claims that would be different.

Axon makes clear that for constitutional claims, not only is the outcome different, because again, Axon got to bring its case in federal district court before the FTC finished its process, but the analysis is different.

You don't have to prove all three Even though all three factors there and here I think point in the same direction, the Supreme Court was very clear where it said even where the factors point in different directions, the court might presume that Congress does not intend to limit jurisdiction.

And that makes sense because it doesn't really matter how much expertise the agency has.