The Supreme Court has scarcely filled its docket for the 2023-24 term, but it is already shaping up to a major term for administrative law.
Among the cases accepted for next term with potentially significant implications for administrative law are the following:
- Consumer Financial Protection Bureau v. Community Financial Services Association of America—Whether the court of appeals erred in holding that the statute providing funding to the CFPB violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding. (I wrote about the cert petition here.)
- Acheson Hotels v. Laufer—Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation. (Josh B. wrote about the cert grant here.)
- Loper Bright Enterprises v. Raimondo – Whether the court should overrule Chevron v. NRDC, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency. (I wrote about the cert grant here.)
- Securities and Exchange Commission v. Jarkesy—Three questions: (1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection. (I wrote about the Jarkesy decision here.)
That’s quite a bit of administrative law for a single year, and there will be more to come. The Court has not even granted certiorari on two-dozen cases yet. Additional cases concerning standing, the Biden Administration’s environmental regulations, vaping regulation, and the FDA’s treatment of mifepristone could still end up before the justices.
Note to Administrative Law professors: Be prepared to revise your syllabi!