Chevron, Loper, and Jarkesy: What Has the Supreme Court Done Now?
Sunday July 21, 3:00-5:00 pm.
The recent Supreme Court term has created a sea change in administrative law – or has it? That was the question addressed by Chevron, Loper, and Jarkesy: What Has the Supreme Court Done Now?, a discussion group on the opening day of the 2024 SEALS annual meeting. The group consisted of more than a dozen administrative law scholars, including several casebook authors, and discussed the ramifications of the Court’s recent blockbuster administrative law decisions in terms of their effect on the administrative state as well as their impact on the group’s pedagogy.
The two-hour session opened with organizer and moderator Linda Jellum asking the group to discuss how the Loper Bright decision, which overruled the longstanding Chevron doctrine of judicial deference to administrative agencies’ legal interpretations, will impact casebook design and structure. Will Chevron remain a prominent case in the judicial review section? If so, what about cases like Mead that followed and refined Chevron? The casebook authors in the group led the discussion, but many of the participants weighed in with thoughts on how best to present this material in light of recent developments, including encouraging students to revisit the issue in Chevron under Loper Bright.
The conversation then moved to whether Loper Bright changed the importance of studying statutory interpretation in administrative law courses. Since Loper requires courts to review agency interpretations of law de novo (albeit with some modicum of judicial “respect” afforded to the agency’s interpretation), this suggests that the study of administrative law will increasingly focus on more traditional statutory interpretation questions, as opposed to the deference analysis required by Chevron. There was no consensus among the group, but an interesting discussion took place around the potential newfound importance of statutory interpretation post-Loper. Participants discussed the balance between the logistical challenges of dedicating significant instruction time to statutory interpretation theory and practice versus the need for students to be conversant in the subject and the lack of coverage elsewhere in the law school curriculum, especially in schools that do not have a first-year legislation and regulation (leg-reg) course. The group built on the statutory interpretation conversation by debating whether Loper Bright elevates the importance of questions about the scope of agency regulatory authority, which in turn led to conversations about where the major questions fits into a post-Loper world, both doctrinally and pedagogically. The discussion of Loper Bright closed with the group sharing thoughts on the substantive ramifications of the decision for the present and future of the administrative state, including whether Loper marks the end of the New Deal-inspired era in administrative law.
Professor Jellum then led the group into its second major topic of the day, the impact of the Court’s decision in SEC v. Jarkesy. Jarkesy held that defendants in SEC enforcement proceedings that result in monetary penalties are entitled to a jury trial in an Article III court (as opposed to an agency adjudication) under the Seventh Amendment. The discussion began with a debate about the ramifications of the Court’s holding, in particular whether it sets the stage for future limits on other categories of agency adjudication. The conversation them moved to the future of the public rights doctrine more generally and a discussion of how best to teach the constitutionality of agency adjudication in light of this potential shift.
The meeting ended with bigger picture issues of what Loper and Jarkesy signal regarding the Court’s current and future relationship with the administrative state and how to best teach our students about that new relationship (if it is indeed one). The group talked about spending additional classroom time on basic principles of the separation of powers, including formalist as well as functionalist constructions, and on discussions of judicial power and the relationship of the Court with the coordinate branches.