Does the FTC actually have the power to set rules like this effectively now that Chevron deference isn't a thing? I'd imagine e.g. the New York Times, among others, will quickly sue to stop this, no?
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While I wouldn't be totally surprised to see this argument, Commissioner Holyoak's dissenting statement doesn't raise it. Instead she purports 1) the FTC didn't properly follow the rule making requirements and 2) the rule is overbroad.
I don't believe this is accurate, as you stated
>The overturning of Chevron deference enables the judiciary to first find that the FTC's authority for this rule is grounded in an ambiguous statute and then decide the FTC went beyond their authority.
The only thing the SCOTUS can do is rule against the agency for exceeding its congressional authority. They aren't substituting their own expertise. Correct me if I'm wrong.
The plain reading of Loper Bright is that the courts should make their own independent interpretation of the statutory provisions. In doing so the court can ignore the agency’s expertise.
That is what Roberts' conclusion wants it to sound like but he claims a lot more power for the courts than the statement implies.
> In an agency case as in any other, though, even if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same—“the reading the court would have reached” if no agency were involved. Chevron, 467 U. S., at 843, n. 11. It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.
In other words, the judiciary has final say on the "best reading" of a statute and all other readings definitionally exceed the authority granted by the statute.
> They aren't substituting their own expertise.
examples of Chevron questions that are now up to the judiciary to identify the "single, best meaning", independently of agency interpretation:
> the Food and Drug Administration (FDA) regulates “biological product[s],” including “protein[s].” When does an alpha amino acid polymer qualify as such a “protein”?
> What makes one population segment “distinct” from another? Must the Service treat the Washington State population of western gray squirrels as “distinct” because it is geographically separated from other western gray squirrels?
I find it exceptionally hard to imagine an answer to either of those questions that don't require a judge to exercise their own chemistry or biology expertise, however limited that may be.