The Evolving Landscape of Administrative Law [including SORNA]

Source: 9/25/23

Shay Dvoretzky, Emily Kennedy
Skadden, Arps, Slate, Meagher & Flom LLP+ Follow Contact

Key Points

  • 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.

Read/download the full paper


Related posts

Notify of

We welcome a lively discussion with all view points - keeping in mind...


  1. Your submission will be reviewed by one of our volunteer moderators. Moderating decisions may be subjective.
  2. Please keep the tone of your comment civil and courteous. This is a public forum.
  3. Swear words should be starred out such as f*k and s*t
  4. Please stay on topic - both in terms of the organization in general and this post in particular.
  5. Please refrain from general political statements in (dis)favor of one of the major parties or their representatives.
  6. Please take personal conversations off this forum.
  7. We will not publish any comments advocating for violent or any illegal action.
  8. We cannot connect participants privately - feel free to leave your contact info here. You may want to create a new / free, readily available email address.
  9. Please refrain from copying and pasting repetitive and lengthy amounts of text.
  10. Please do not post in all Caps.
  11. If you wish to link to a serious and relevant media article, legitimate advocacy group or other pertinent web site / document, please provide the full link. No abbreviated / obfuscated links. Posts that include a URL may take considerably longer to be approved.
  12. We suggest to compose lengthy comments in a desktop text editor and copy and paste them into the comment form
  13. We will not publish any posts containing any names not mentioned in the original article.
  14. Please choose a short user name that does not contain links to other web sites or identify real people
  15. Please do not solicit funds
  16. If you use any abbreviation such as Failure To Register (FTR), or any others, the first time you use it please expand it for new people to better understand.
  17. All commenters are required to provide a real email address where we can contact them.  It will not be displayed on the site.
  18. Please send any input regarding moderation or other website issues via email to moderator [at] all4consolaws [dot] org
  19. We no longer post articles about arrests or accusations, only selected convictions. If your comment contains a link to an arrest or accusation article we will not approve your comment.
ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website.  In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.  

Inline Feedbacks
View all comments

so I guess we’re watching the Loper Bright Enterprises v. Raimondo, in which the Court will consider whether to overrule Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

does anybody know how this case is different than Gundy vs United States case. I assume it’s the plaintive not being a registered citizen is the primary reason this is back so quick.

Securities and Exchange Commission v. Jarkesy is another case that could overturn the administrative state that would benefit registered people.