Since 2021, the Supreme Court has issued several decisions with potentially transformative effects for administrative law. But did that potential transformation actually occur? That was the question addressed by the panel titled Experience Since the Roberts Court’s Revolution in Administrative Law. The panel was organized by Professor Bill Funk and involved presentations by four administrative law scholars on the impacts of four of the Court’s recent decisions.
Professor Funk began by revisiting the Court’s holding in West Virginia v. EPA, 597 U.S. 697 (2022). The case involved a dispute over the EPA’s statutory authority to regulate coal-fired power plants. In holding that the agency lacked statutory authority to issue its regulation, the Court relied on the major questions doctrine, a controversial doctrine applying a clear statement rule to statutory authorizations of economically or politically significant regulations. Professor Funk explained how courts have applied the MQD since West Virginia and concluded that when it is used, it limits agency power, and when the lower courts decline to use it (because the agency action under review is ostensibly not “major”), agencies generally prevail.
Next was Professor Linda Jellum discussing SEC v. Jarkesy, 603 U.S. 109 (2024), a case involving the constitutional authority of administrative adjudicators to issue penalties in agency enforcement proceedings. Despite nearly a century of Supreme Court precedent to the contrary, the Court held that the Seventh Amendment precludes cases that constitute “suits at common law,” including cases involving legal remedies (like penalties). Professor Jellum outlined the scope of the Court’s holding and its deviation from existing precedent, then proffered some ideas on the potential consequences of the Court shifting the constitutional boundaries of agency adjudication. Those consequences ranged from a dramatic decrease in all forms of agency adjudication to more targeted limits on domestic regulatory and adjudicative power.
The third case, Corner Post v. Board of Governors of Federal Reserve Board, 603 U.S. 799 (2024), was presented by Professor Lou Virelli. It addressed whether the general, six-year federal statute of limitations, 28 U.S.C. § 2401(a), which is the default limitation for suits challenging the validity of agency action under the APA, begins to run when the plaintiff is first aggrieved by that action, rather than when the challenged agency action becomes final. Section 2401(a) has been interpreted since its enactment in 1948 to begin running when the agency action being challenged is finalized. In Corner Post, the Court held that a plaintiff can bring a facial challenge to agency action under § 2401(a) within six years of plaintiff’s harm, no matter how much time has passed since the agency action was finalized. Professor Virelli explained that Corner Post has been applied in unrelated cases not involving agency action under the APA, but that the issue of whether facial procedural challenges to agency action should accrue when the agency process is complete are still unresolved.
The fourth presenter, Professor David Hasen, discussed the Court’s high-profile overruling of Chevron deference in Loper Bright v. Raimondo, 603 U.S. 369 (2024). Professor Hasen explained how the Court based its holding on a re-interpretation of § 706 of the APA, which had been applied consistently since its enactment in the 1940s, and sampled data on how lower courts have applied the new judicial review scheme under Loper Bright. It showed that the outcomes of judicial interpretations of agency statutes have not—based on the limited data available—changed drastically under Loper Bright. There was additional discussion on how the four cases may collectively make it more difficult for agencies to function, but that more data would be needed before any conclusions could be reached.
Tuesday, July 29, 2025, from 10:15-1200