The Supreme Court rebalances the administrative state
Introduction The 2023−2024 Supreme Court term continued a strong rebalancing of power among the courts, the administrative state and, if it pays attention, Congress. This rebalancing will impact how executive branch and independent agencies engage in rulemaking, issue guidance and engage in enforcement. Courts will exercise more independent judgment and look more critically at agency […]
Margaret E. Tahyar and Joseph A. Hall are Partners and David A. Zilberberg is a Counsel at Davis Polk & Wardwell LLP. This post is based on a Davis Polk memorandum by Ms. Tahyar, Mr. Hall, Mr. Zilberberg, Loyti Cheng, Paul D. Marquardt, and Mario Verdolini.
Introduction
The 2023−2024 Supreme Court term continued a strong rebalancing of power among the courts, the administrative state and, if it pays attention, Congress. This rebalancing will impact how executive branch and independent agencies engage in rulemaking, issue guidance and engage in enforcement. Courts will exercise more independent judgment and look more critically at agency actions. Nonetheless, agencies continue to have significant power, authority and discretion. We do not believe that the rebalancing will result in an immediate seismic shift in the administrative state as predicted by some media commentators. When Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. was decided in 1984, it took years for its implications of strong deference to administrative agencies to be widely understood. Similarly, it will take years to understand the full import of the new status quo. We expect an uptick in litigation, rather than a “blitzkrieg” or “tsunami.” We agree with those commentators who have observed that litigation challenging agency actions will not be brought solely by regulated entities, but also stakeholders that favor greater regulation. Future litigation will not necessarily favor one set of interests over another. This update briefs on the main themes in the new status quo and what it means for the future.
