The Roberts Court is significantly reshaping administrative law

The Supreme Court just completed its third full term with six conservative justices, during which it has dramatically changed many aspects of constitutional law. Although they do not receive the public attention of the Court’s decisions to overrule Roe v. Wade, dramatically expand gun rights, or give the president broad absolute immunity from prosecution, several rulings have significantly altered administrative law. These rulings will have a profound effect on the legal system and our society.

The most significant change in American government since 1787 has been the creation of myriad administrative agencies that affect literally every aspect of life and business in the United States. Federal agencies have existed since the beginning of the country, but they increased in the late nineteenth and early twentieth century – exploded in number and authority in the New Deal, and have continued to increase since then.

In the last few years, the Court has brought about the most dramatic changes in administrative law since the enactment of the Administrative Procedures Act 1946. In the two terms prior to this one, the Court created a new doctrine to limit the power of federal agencies: the major questions doctrine. This is the principle that a federal agency cannot act on a major question of economic or political significance unless it has clear direction from Congress. Two years ago, in West Virginia v. Environmental Protection Agency, the Court applied this doctrine to hold that the Environmental Protection Agency lacks authority to regulate greenhouse gas emissions from coal-fired power plants. Last year, the Court used the major questions doctrine in Biden v. Nebraska and held that the Secretary of Education lacked authority to adopt a loan forgiveness program. This has spawned a great deal of litigation over what is a major question and what is sufficient congressional guidance to allow an agency to act.

In the term that ended on July 1, 2024, the Court again significantly changed the law concerning federal administrative agencies. Loper Bright Enterprises v. Raimondo overruled the 1984 decision, Chevron, USA v. Natural Resources Defense Council, which held that federal courts should defer to federal agencies when they interpret ambiguous federal statutes. Chief Justice John Roberts wrote for the Court in a 6-3 decision and said that “the reviewing court – not the agency whose action it reviews – is to decide all relevant questions of law and interpret … statutory provisions.” Justice Elena Kagan wrote for the dissenting justices and said that this is likely to produce a “large scale disruption.” She explained that Chevron deference has been a crucial part of “modern government, supporting regulatory efforts of all kinds – to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”

In Securities and Exchange Commission v. Jarkesy, the Court, in a 6-3 decision, held that it violates the Seventh Amendment right to a jury trial for administrative agencies to impose civil penalties. Chief Justice Roberts wrote the opinion for the Court. Justice Sonia Sotomayor wrote a strong dissent for the liberal justices, noting that this will affect the powers of dozens of agencies with over 200 statutes authorizing agencies to recover civil penalties. She lamented the “Court’s repeated failure to appreciate that its decisions can threaten the separation of powers.”

In Corner Post v. Board of Governors of the Federal Reserve System, the Court, in a 6-3 decision, said that challenges to an agency’s action must be filed within six years of when an injury occurs, not six years of the agency’s action. Justice Jackson, in her dissent, said that the implications of the Court’s decision would be “staggering.” She wrote: “This means that, from this day forward, administrative agencies can be sued in perpetuity over every final decision they make.” She said that the majority’s approach “creates uncertainty for the Government and every entity that relies on the Government to function.”

Each of these cases over the last few years were 6-3 rulings, divided along ideological lines. The administrative state has been based on the premise that Congress may create federal agencies with broad authority to implement the law, that it is unrealistic for Congress to legislate in great detail and that it needs to leave much to the agencies, and that the agencies have expertise to which courts should defer. The liberal justices on the Court continue to accept these premises. The conservative justices, however, clearly reject them and their decisions reflect a desire to have much more extensive judicial limits and control over agency powers.

In fact, every change in administrative law in the last few years has been to transfer authority from agencies to courts. The major questions doctrine involves courts striking down agency actions because of a lack of sufficient congressional guidance. Overruling Chevron deference means that no longer do courts defer to agencies’ interpretation of ambiguous statutes. Jarkesy means that agencies cannot impose civil penalties, at least in fraud cases; they must go to federal court. And Corner Post makes it much easier for those who dislike agency actions to challenge them in court.

Why is there this ideological divide? Some of it may be that the conservatives are generally pro-business and for obvious reasons, oppose regulations and want more opportunity for courts to overturn agency actions. Some of it may be a loss of faith in the idea of expertise, especially by conservatives, something we see in other parts of society as well. Some of it may be the influence of the formalism and originalism of the conservative justices. Federal agencies and their powers do not easily fit into the structure of the Constitution created in 1787.

The bottom line is that the administrative law decisions of this term are a major change in the law and part of a larger trend from the Roberts Court. They also are likely not the last word from the Roberts Court about limiting the power of federal agencies.