Shay Dvoretzky, Emily Kennedy
Skadden, Arps, Slate, Meagher & Flom LLP+ Follow Contact
- The U.S. Supreme Court’s October 2023 term may bring fundamental changes to administrative law, including by possibly overruling Chevron.
- Decisions in recent years demonstrate the Court’s skepticism of administrative power and increasing willingness to question government regulation.
- New limits on agency power may create opportunities for businesses to challenge unfavorable regulations, but they also may open the door to attacks on long-standing rules that businesses find helpful and predictable.
One of the most significant areas of the law for businesses is administrative law. From questions about a new industry-specific regulation to marshaling a defense against enforcement proceedings, any entity that is subject to government regulations has an interest in developments in administrative law.
Key U.S. Supreme Court decisions in recent years have significantly cabined the role of federal agencies and opened the door to new avenues for challenging government regulation. Even more changes may be on the horizon.
Realigning Separation of Powers: Nondelegation
More fundamentally, the major questions doctrine reflects a Supreme Court that is eager to realign separation of powers in ways that minimize the administrative state. The West Virginia majority makes clear that “[a]gencies have only those powers given to them by Congress,” and courts decide which powers Congress has conferred. Those strict boundaries go hand in hand with the Court’s skepticism of Congress’ ability to delegate any lawmaking authority to another branch (the so-called “nondelegation doctrine”).
Several justices expressed a desire to reinvigorate the nondelegation doctrine in a 2019 case, Gundy v. United States. Article I of the Constitution vests all legislative power in Congress. The nondelegation doctrine seeks to ensure that Congress doesn’t give away that power to another branch or entity. The question in Gundy was whether the Sex Offender Registration and Notification Act (SORNA) violated Article I by authorizing the U.S. attorney general (a member of the executive branch) to specify how SORNA applies to sex offenders convicted before the law was enacted.
While a narrow majority in Gundy found no nondelegation problem with SORNA, four justices — Chief Justice John Roberts and Justices Thomas, Gorsuch and Samuel Alito — expressed a willingness to revive the erstwhile doctrine. Justice Kavanaugh didn’t participate in Gundy, which was argued before his confirmation, but West Virginia demonstrates a majority that is eager to restrict lawmaking to the legislature.