Like everybody else, I’ve been trying to understand the impact of AI and LLM models on, well…everything. So sometimes I experiment by asking the models about an arcane topic I know about in detail — like the WIFIA FCRA Criteria.
This morning in a ‘discussion’ with the free version of ChatGPT, the model admitted (after some clarifying back-and-forth) that the Criteria were not consistent with FCRA law, but that under Chevron deference, OMB had some scope for interpretation.
I saw last year that Chevron deference was overturned by Loper Bright and thought at the time that this might be relevant to the Criteria issue. But I then concluded that such ‘deference’ could never have extended to an outright misreading and misapplication of unambiguous technical law. Rather, it seemed to me that Chevron deference was intended for areas where at least some judgement call was involved — broadly stated statutes, regulations, refinement of eligibility standards, etc.
So, although Loper Bright seemed a very useful support of the general principle (e.g., bureaucrats can’t do whatever they want by claiming sole expert authority in some technical area), it didn’t seem to change the basis of a legal challenge to the Criteria — because ‘deference’ wasn’t the issue but outright ‘wrongness’. And if no stakeholders had brought a ‘wrongness’ suit against OMB, I assumed that was because they didn’t think it would work, regardless of underlying merits, as a practical solution (i.e., too long, too costly, too much confrontation with a powerful oversight agency, etc.). So, I left it at that.
Yet here was ChatGPT suggesting that OMB could have used the Chevron defense. Well maybe. I’m sure the folks at OMB expected ‘deference’ on all FCRA questions, not as a legal shield, but as a result of their imperious authority on matters of profound mystery, over which they likely expected no possible challenge. But it made me think.
I then asked ChatGPT about whether Loper Bright would have an impact, and of course the model agreed that it would and outlined the arguments. It then offered to draft a legal challenge to the Criteria — okay, why not? The PDF is posted above. I’m not a lawyer and don’t offer legal advice, so although the outline looks plausible, I don’t know whether it has any merit.
As noted above, I’m guessing Loper Bright probably hasn’t changed much with respect to the practical value of a legal challenge to the Criteria. But you know what has changed — a lot — since the time of Chevron overturn? The whole federal landscape.
When DOGE is blithely chain sawing long-established programs, federal agencies are laying off thousands of long-serving civil servants, and the Administration is challenging long-respected precedents on a daily basis, daring to question some OMB bureaucrats in court about their obvious overreach doesn’t look exactly radical. Maybe WIFIA and CWIFP stakeholders should think about it?