On October 7, the Northwestern Master of Science in Law program convened an expert panel to discuss “The Future of Regulation and Administrative Law in the US.” The panel delved into the current state of the law by discussing the spate of recent Supreme Court decisions involving administrative agencies and regulatory policy – especially the Court’s decision last summer in Loper Bright v. Raimondo, which overturned the longstanding Chevron deference doctrine. With the Court’s major decisions in this area still so new, and with other related cases still on the horizon, the future of administrative law in the US remains uncertain; event attendees and panelists will be watching with informed interest as these issues unfold.
The panelists provided a range of perspectives on key issues, drawing from their backgrounds as scholars and lawyers. Northwestern Law professors James B. Speta and Daniel B. Rodriguez, both of whom teach courses on administrative law and are notable scholars on a range of pertinent topics, offered thoughts about Loper Bright and about trends in contemporary administrative law. Both speakers agreed that while the overturning of Chevron was controversial and widely anticipated, it remains too early to assess the impact of courts using their independent judgment to interpret statues, rather than deferring to agency interpretations. As Professor Speta noted, Chief Justice Roberts (joined by five of his colleagues, those traditionally viewed as the conservatives on the Court), expressed a strong “mood” of skepticism directed toward the practice of judicial deference to agency views – the Court has made clear its view that statutory interpretation should grow out of close attention to the words and context of the statute, and ought not to be confused with the kind of policymaking that agencies often do under conditions of legislative delegation. Professor Rodriguez added that the impact of the Loper Bright decision may be especially significant, in light of the Court’s strong expressed preference for a more formal and rigid approach to interpretation – what has been labelled “textualism.” The window is closing for a more real-world approach to addressing regulatory puzzles, where agencies – not courts – craft solutions that are not always tightly tethered to the expressed will of Congress.
The industry panelists brought insightful perspectives drawn from their broad and deep practical experience working with regulatory agencies, especially in complex matters involving science and technology. Evelyn Miller is a lawyer who in recent years has worked for two of the biggest tech companies, Meta and Amazon Web Services (AWS). She noted that some of the most important contemporary issues involve administrative agencies that frequently have worked in close collaboration with industry to develop regulations that address incredibly complex, fast-moving technology issues. Acknowledging that the line between acquiescence to corporate objectives and responsible independent governance can be a fine one, Evelyn noted that one of the key values of Chevron deference was its respect for the diligent work of agencies and the corresponding willingness of courts to defer to agencies’ expert judgments. The more that regulatory power is reallocated from agencies to courts, the more the workability of this longstanding process is threatened.
Shelby Buettner practices law in the regulatory area and currently serves as a legal strategist and compliance officer in the life sciences area for a leading medical product company, Becton Dickinson (BD). She described the predicament of agencies facing a very uncertain legal ecosystem after Loper Bright. The overturning of Chevron, she noted, will potentially bring many individuals and companies out of the woodwork to challenge agency actions that they believe violate the governing statutes. Buettner noted that other recent Court developments exacerbate the risks involved, including last term’s Corner Post opinion, which provides a much more generous statute of limitations for challenges to final agency actions, and also the “major questions doctrine,” which limits the power of agencies to act on matters of considerable economic or social significance.
Michael R. Barsa, a Professor of Practice at Northwestern, managed the discussion, engaging the panelists in a conversation about what Loper Bright and other major modern administrative law decisions augured for the regulatory state. The conversation was wide-ranging, and the large crowd joining the event in person and online heard interesting perspectives from this diverse group of academics and practicing lawyers. The common theme throughout was that the future of regulation and administrative law is uncertain, but that the combination of Supreme Court decisions that have effectively restrained agency discretion alongside the current political dynamics of regulatory administration raise concerns about the capacity and resolve of the federal government to confront some of the most complex and challenging policy issues faced in the US.
