Chevron’s Death Doesn’t Kill AI Regulation

The Supreme Court’s blow to the power of regulatory agencies earlier this month could have profound consequences for nascent U.S. efforts to regulate artificial intelligence.

The court ruled in Loper Bright Enterprises vs. Raimondo to invalidate the precedent-setting judgment of 1984: Chevron vs. Natural Resources Defense Council.On Chevron doctrine, the courts were obliged to be guided by the agency interpretation.

When it comes to regulations regarding artificial intelligence, Loper Light The decision is therefore a clear, if not entirely decisive, victory for those who believe that overregulation poses the greatest threat to the development of AI, and a loss for anyone who believes that the United States should continue to govern — rather than prevent — AI.

Following in the footsteps of Loper BrighUnder this decision, Congress would clearly define the scope of authority granted to any future AI agency (or legislation granting an existing agency significant authority to regulate AI).

“Death Chevron deference makes it clear that it’s not up to regulators to decide the scope of their authority; it’s up to the courts,” Jeremy Richardson, a partner at Smith, Gambrell & Russell, LLP, explained in an interview. He added that the decision does not favor any political party, as there are federal court judges who hold conservative and liberal views.

Moreover, as Richardson noted, the Administrative Procedure Act, which governs the rulemaking and adjudication processes of administrative agencies, remains in effect. Drifter does not invalidate any enabling statute, he said. Instead, it makes clear that if there is a question about the scope of the authority granted by the enabling statute, that is a question of law for the court, not the regulator.

As a result, Richardson believes a strengthened AI regulator may be possible in the future.Chevron world. “Once an AI oversight agency is authorized – if it happens – I assume it will have broad (and in light of Drifter“(…) a clear mandate to act and I hope that well-informed, intelligent people will respond to the call to establish appropriate safeguards,” he said.

However, Justice Elena Kagan’s dissenting opinion takes a different perspective on the extent to which Loper Light will limit the taking into account of specialized knowledge.

“Congress knows that it does not—indeed, cannot—write wholly complete regulatory statutes,” she wrote. “It knows that those statutes will inevitably contain ambiguities that some other entity will have to resolve, and gaps that some other entity will have to fill. And it would generally prefer that entity to be the responsible agency, not the court.”

Consequences of death Chevron respect thus depends on courts being able to fairly evaluate topics that are beyond their skill and training. For most judges, regulatory issues related to science and technology—AI being the most pressing—fall into this category. Justice Kagan’s dissenting view is that because some of the issues that can arise in a regulatory context are technical, those responsible for interpreting them should have sufficient expertise in the field. “The agencies have expertise in these areas; the courts do not,” she wrote.

According to Charlie Bullock, a research fellow at the Institute for Law and Artificial Intelligence, few people disagree with Kagan’s characterization of the virtues. Chevron respect. “But people have different views on the costs,” he said in an interview. Where they fall depends largely on whether they are more concerned about underregulating or overregulating AI.

Bullock said the issue of AI regulation is the “poster child” for Chevron’s respectability, largely for two reasons: 1) AI regulators draw on deep expertise; and 2) given the rapidly changing circumstances surrounding AI, regulatory flexibility is paramount. Agencies are more likely than Congress to update regulations frequently and quickly.

While Loper Light The decision doesn’t strip the agencies of all their teeth, but it certainly raises the bar for specificity when it comes to future legislative language outlining their responsibilities. The change could end up increasing pressure on Congress to define which agency is responsible for which types of AI regulation in absolute detail.

In other words, the decision doesn’t go so far as to prevent Congress from delegating important matters to regulatory agencies. According to Mark Macarthy, a nonresident senior fellow at the Center for Technology Innovation at Brookings, the decision could have been more radical.

“The way the court overturned Chevron “still leaves plenty of room for agencies to create measures that protect the public interest, provided that future legislatures clearly define the delegation of authority,” he wrote.

That’s a pretty big caveat. Legislators haven’t always delegated regulatory authority particularly clearly. The high level of political polarization in the legislature won’t make that more likely.

Plus, Chevron The conclusion could change depending on a number of factors — most notably the people in the White House. If Trump is reelected, he could make most federal cabinet positions political appointments (as he began doing in 2020 via “Appendix F” — and is recommended in the Heritage Foundation Project 2025 plan for a second Trump term). In such a scenario, Chevron This respect would give greater power to the new agencies, which would not, by definition, be staffed by experts in a given field.

While current political, legal and technological realities suggest Loper Light will make it harder to regulate AI and its political utility Chevron respect always depended on the situation.

“Everybody likes Chevron when they enjoy the favor of the agencies but not the courts – and everyone hates them Chevron “When they have the favor of the court but not the agency,” Bullock said.

For now, it seems like there is a lot of goodwill from all sides among the major AI companies in the United States. But Bullock said there is still “a huge amount of uncertainty, especially in the lower courts, about exactly what Loper Light means and how big of a deal it is.” Agencies may hesitate to pursue ambitious regulation, he said, if they are unsure whether they are exposing themselves to lawsuits.

“We were in Chevron the world for 40 years,” Bullock said. How much power would agencies have under the weaker doctrine Skidmore the respect remains to be tested. The Supreme Court’s decision to overturn Chevron opens up what Bullock called “a whole universe” of previously established case law.

Given these risks, he expects regulators to take a cautious approach. Silicon Valley AI firms have shown they have no intention of doing the same.