ADMINISTRATIVE AGENCIES ON THE ROPES:WHAT’S NEXT FOR THE ADMINISTRATIVE STATE AFTER THE OCTOBER 2023 SUPREME COURT TERM?

Written by Julia Stein¹

In the waning days of the October 2023 term, the Supreme Court issued a series of decisions that strike at the heart of what has colloquially become known as "the administrative state": the collection of federal government agencies responsible for regulating our society pursuant to authority delegated to them by Congress. Taken together, and in the context of current political realities in the United States, these decisions will inevitably affect regulators and regulated entities alike as the courts utilize expanding powers to scrutinize administrative rules.

Part I of this article will summarize each of three recent decisions: SEC v. Jarkesy²(hereinafter, Jarkesy); Loper Bright Enterprises, Inc. v. Raimondo/Relentless, Inc. v. Department of Commerce³ (hereinafter, Loper Bright); and Corner Post, Inc. v. Board of Governors⁴(hereinafter, Corner Post). Part II discuss the ways in which the decisions may interact with each other, and with the "major questions doctrine" articulated in prior Supreme Court decisions, to change the regulatory landscape, and what that could mean for climate and environmental law, both federally and in California. And Part III will offer some preliminary thoughts, looking ahead, for advocates seeking to hold—and maybe even advance—the regulatory line in environmental law.

PART I: THE ONE-TWO-THREE PUNCH