Each year, the Program in Law and Government hosts a panel to preview major cases before the Supreme Court for the upcoming term. This year, panelists also reviewed several highly influential decisions passed earlier this year.
The panel featured Lisa Bressman, Vice Dean and David Daniels Allen Distinguished Chair in Law; Kevin Stack, the Lee S. and Charles A. Speir Chair in Law; and James Blumstein, University Distinguished Professor of Constitutional Law and Health Law & Policy.
Bressman on Loper Bright
For 40 years, the “Chevron doctrine,” established in the case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., allowed courts to defer to administrative agencies to interpret ambiguities in regulatory statues, which Bressman categorized as effective and expeditious.
“If a statute charges an agency with responsibility to implement a statutory program … then it makes sense that the agency would be the one to interpret any ambiguities that arose over the meaning of the language in that statute,” she said.
But some policymakers and judges policymakers and judges took issue with this, believing that only courts should be allowed to interpret the law. Among the dissidents were several justices of the Roberts Court, who took the opportunity to strike down Chevron with Loper Bright Enterprises v. Raimondo.
“Loper Bright arose and gave the Court an opportunity to follow through on some of the comments,” Bressman explained. “[Loper Bright] gave them a chance to decide whether Chevron was the right law.”
While Bressman anticipated that the Roberts Court would overrule Chevron, she was still caught off-guard when the opinion was released.
“The way that the opinion was written was more stark than I expected,” she said.
The opinion cited the Administrative Procedure Act as the final word in administrative law and concluded that Chevron could not be reconciled with the APA’s wording. The opinion offered that courts could consider agency interpretations but should ultimately be responsible for interpretations of ambiguous statutes.
Stack on Corner Post
Prior to Corner Post v. Board of Governors of the Federal Reserve System, rules established by agencies could only be challenged for six years after creation; the Court’s ruling in Corner Post essentially negated the previous six-year statute of limitations.
The Court concluded that a plaintiff created after the original six years should have their own six years to challenge any rules. According to Stack, the most important post of Corner Post is its interaction with Loper Bright.
“If the Supreme Court had not changed the standard of review applicable to agency statutory interpretation, then the change in the statute of limitations wouldn’t be that significant,” Stack said. “This potentially opens the door to re-litigate any existing regulation that’s already on the books.”
Stack foresees potential political implications to Corner Post, primarily because many industries are built on long-standing federal regulations that can now be called into question.
“If we start to see many regulations reversed upon which industries have relied, there might be a bit of pushback,” Stack said. “There are currently pending bills in Congress to reverse Corner Post. There’s certainly going to be a divided set of interest groups that might want to contain the scope of broad litigation.”
Blumstein on Jarkesy
In SEC v. Jarkesy, hedge fund manager George Jarkesy argued that administrative proceedings brought against him by the SEC violated his Seventh Amendment right to a jury trial. Previously, no jury trial was required when the SEC sought civil penalties for securities fraud, but the Court ruled in Jarkesy’s favor, opening the door for anybody to take an agency before a jury for civil penalties.
“The key question that really divides the justices is whether an exception to the coverage of the Seventh Amendment, a so-called public rights exception, applies in this case,” Blumstein said. “The SEC and Justice Sotomayor’s dissent focused primarily on this idea of a public rights exception.”
But ultimately, the court emphasized that the Seventh Amendment itself favored adjudicating these claims with a jury, as the role of the jury is to prevent government overreach.
“You can see a form of populism developing in the majority opinion, where juries are a response to concerns about governmental overreaching,” Blumstein said. “There’s a lot of criticism, especially in Justice Gorsuch’s concurrence, about the lack of procedural protection.”
Looking ahead to the next term
According to Bressman, San Francisco v. EPA might be one of the first chances to see the impact of Loper Bright. San Francisco’s wastewater treatment plants overflow into the Pacific Ocean during heavy rains and the EPA requires that cities obtain permits for these types of dumping. San Francisco brought forth the case to challenge two provisions in the most recent permit and the Court’s ruling on their validity will set a precedent for the balance between courts and agencies post-Loper Bright.
“How is that going to work out? What part do courts get to say, and what parts grant the EPA authority?” Bressman asked. “We’ll maybe learn a little bit more about Loper Bright.”
Bressman also flagged FDA v. Wages and White Lion Investments, which involves the regulation of e-cigarettes and how they are marketed towards youth. The FDA is asking for studies that show marketing will not entice youth, while the companies argue that the FDA is constantly changing their requirements.
