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Abstract

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not to authorize regulation of political ads. This raises questions about the FCC’s authority. Historically, the Supreme Court relied on Chevron, which offered broad deference to an agency’s interpretation of a statute Congress charged it to administer. This Article examines how the Supreme Court—which recently abandoned Chevron Deference—will now interpret the FCC’s and similar agency claims of authority in the future. This Article argues that the Court, in abandoning Chevron, seeks to expand judicial power by imposing “clear statements” on agencies via the Major Questions Doctrine. However, this Article observes that clear statement expansion in the agency context is vastly unique to other areas of clear statements jurisprudence because the Administrative Procedure Act (APA) provides two statutory ways for Congress to completely write the Court out of key areas of administrative discretion. This Article concludes that the Court’s current activism may potentially backfire resulting in Congress limiting the Court and leave agencies solely responsible to address the myriad of unforeseen legal issues that emerging technologies will undoubtedly present.

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