After the Supreme Court limited the power of federal agencies to craft regulations, it’s likely up to Congress to keep US cybersecurity policy intact.
Archived version: https://archive.ph/kUJR2
After the Supreme Court limited the power of federal agencies to craft regulations, it’s likely up to Congress to keep US cybersecurity policy intact.
Archived version: https://archive.ph/kUJR2
That’s my point. But this decision switches that responsibility to judges now. Unless the substance is defined in the law written by Congress, the authority to add new substances to the list now falls on the courts, not agencies. Well not by default, but if any of the companies that produces or uses the substance sues the agency to prevent it, the arbiter of that will be the judge, and it will be decided as a matter of law, not as a matter of scientific data. Data is now not part of the evaluation. And we know from history that they will sue, because that happened every single time so far.
Congress makes laws not the courts. The court can’t just ban something like a drug. They can do things like decide the limits of free speech but actual law making falls to congress. The executive branch approves the bills so they become laws and has the responsibility of enforcement.
Congress does create laws, but like I said previously they are ambiguous, because you can’t note down every single possible case. Until now, that ambiguity has been interpreted by subject experts, now it will be handled by judges. So if the law that gives authority to agencies to ban substances doesn’t spell out each item, but just says those that cause “x harm” or contains “x component”, agencies were able to add new items based on scientific data and if sued, used that data to prove the harm. Now courts must ignore scientific data and judges have to interpret the law exactly as written. So if the item is not specifically named, it’s not part of the law and can’t be added. So the executive branch can’t carry out the job it’s supposed to do. And you can’t create a law that bans a named product that doesn’t exist yet, hence ambiguity and delegation to experts under Chevron. Now, all that is a job of the courts and their slow process that can take up to 10 years, including appeals. Combine that with their another decision that removed the 6-year statute of limitations for challenging regulations, and the courts will be backed up for years upon years now. So good luck getting anything done.
I would really recommend you to read the case, they explain the background quite well. Case file: https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf