US Administrative Law of Rulemaking : 2024 US Supreme Court Cases and the Trump Administration

The transition is unlikely to be a smooth one, not least because the practical reach of the recent case law remains unclear.  The loaded rhetoric of President Trump and some of his executive branch nominees—including those associated with the so-called Department of Government Efficiency (DOGE)—does not translate easily into precise programmatic responses at the agency level. In practice, Supreme Court decisions designed to restrict agency regulatory behavior may, during the Trump II Administration, serve as breaks on the most far-reaching of his administration’s purported “reform” efforts. In this sense, there is a certain irony to the administrative law movement that the Trump administration helped to inspire: on one hand, it was successful in triggering changes in the overall administrative law framework in the US, as evident in recent Supreme Court Terms, including the most recent one. But, on the other hand, those changes could create obstacles limiting the Trump administration’s ability to pursue its fully destructive agenda aimed at the administrative/regulatory state.

Begin with the recent Supreme Court decisions. The most widely reported has been the joined cases of Loper Bright and Relentless. The opinion over-ruled Chevron, a famous case that instructed courts to defer to an agency’s “reasonable” interpretation of a legal term, so long as there is no direct conflict with clear congressional intent expressed in statutory language. The original case dealt with a changed interpretation of the phrase “stationary source” in an air pollution stature tied to a change in the presidential administration and justified on political and policy grounds. Having found that the statute did not contain clear instructions from Congress on the meaning of the contested term, the opinion in Chevron deferred to the agency’s new interpretation of the term, given its subject-matter expertise and greater democratic accountability compared to a generalist court.

Loper Bright and Relentless, raised similar issues. The statute in question involved the regulation of the Atlantic herring fishery and a federal agency that interpretated the relevant statute to allow it to charge the fishermen for the cost of on-board inspections. The inspections were part of a statutory scheme designed to protect the health of the fishery for its participants by preventing over-fishing. But the statute itself didn’t clearly permit the agency to charge fishermen for the cost, which was the basis for the lawsuit. Drawing directly from Chevron, the lower courts deferred to the agency’s interpretation of the fishery statute. But in its opinion in Loper Bright and Relentless, the Supreme Court announced that Chevron is no longer good law and remanded the case for reconsideration by the lower courts.

The Supreme Court’s rationales for overruling Chevron in its recent opinion are complex and contain several moving parts. They had to do with the text of the Administrative Procedure Act of 1946, with considerations relating to stare decisis, and with arguments about the historical role of courts in interpreting statutes in America. But, in large part, the Supreme Court’s decision to toss out Chevron rested on the majority’s strong views about the law/policy distinction. According to the Court’s majority, the Chevron decision was much too dismissive of the status of “law” and much too willing to accommodate the role of “policy” in statutory interpretation. For the Court, the Chevron framework thus allowed judges to abnegate their responsibility to say “what the law is,” as famously stated in Marbury v. Madison, thus giving impermissible deference to agency interpretations of pure legal questions. Indeed, in the oral argument, judges from across the Court’s ideological spectrum claimed that judges had the authority to decide the meaning of “the law.”

But in relying so strongly on the law/politics divide to eliminate Chevron, the Court has ignored real complications in distinguishing law from policy. It also was blind to the lessons that might be learned from comparative experience, including on that issue itself. Indeed, the law/policy distinction, whatever its merits in the abstract, is terribly slippery in practice. This is true, in general, but perhaps especially so in administrative and regulatory states charged with the implementation of complex statutes. In implementing these statutory schemes, public agencies must apply both scientific knowledge and political/policy judgments to implement regulatory programs. This is, after all, a basic justification for the administrative state.

The 2024 case overruling Chevron, though it appeared to struggle with this issue and to take it seriously, did not end up resolving the puzzle. The majority’s rhetoric endorsed the viability of the law/policy distinction and the ability of judges to stay the course without deference (what Edward Coke once called the “artificial reason of the law”). French jurists and European lawyers, in general, will recognize this conceptual debate and the claim that jurists can place interpretations confidently in one of the two boxes—law for judges, politics/policy for politicians and their top advisors. Yet, as many have shown, legal systems that claim to make a sharp distinction between law and policy end up having to make compromises—for example, “the margin of appreciation” in German law which gives government administrators some space to exercise discretion (for discussion, see here) or, as in France, by utilizing variable standards of review which can in practice be quite lenient and non-intrusive (for a recent discussion, see here).

Furthermore, general executive rules seldom are subject to judicial review in European legal systems which place few legal constraints on rulemaking in the executive, even if they do require some level of political oversight from the legislature. France is a partial exception where the Constitutional Council held that Constitution’s Environmental Charter requires public participation for executive regulatory procedures dealing with the environment. However, that exception is limited to environmental matters. Overall, the US rulemaking process is constrained by the Administrative Procedures Act that sets up a basic procedure for promulgating most rules with the force of law. An eligible agency must issue a public notice followed by an open-ended comment period open to anyone who wishes to submit remarks. The final rule must include a public statement of reasons and is subject to judicial review both to check conformity with the substance of the relevant stature and with required procedures under the APA or other applicable laws.

Comparative law illustrates that Loper Bright’s law/policy distinction must realistically give some interpretive space to the executive and the public administration, even with jurists’ insistence that interpreting the law is the province of the courts. Given the difference in roles of the courts in reviewing administrative action, it seems likely that, in practice, judges in France and Germany will often accept agencies’ policy choices de facto, even if not de jure. A similar fate might very well exist in the US, Loper Bright notwithstanding.

Relatedly, the nature of US rulemaking procedures arguably should have affected the Loper Bright decision more than it did. The protracted and public process for developing rules with general legal applicability suggests that judicial review should focus on the acceptability of agency procedures and less (or, at least, less vigorously) on the substance of the resulting rule. These procedures establish meaningful checks on agency action, making the need for an independent evaluation of the agencies’ substantive decisions less necessary. In that sense, the US rulemaking process is further evidence against applying a rigid (even dogmatic) law/policy distinction. Moreover, this rulemaking process is also a strong signal that decisions by an agency, developed through expertise and by engagement with external actors, including other experts and the public at large, is at best a mixed law/politics issue; not something that fits neatly in only one box.

Now, consider Corner Post, a case decided a few days later, whose holding may interact with Loper Bright going forward. A small business complained that it was not in existence at the time an administrative rule was promulgated, and so it did not have the opportunity to participate in the hearing on the rule or to complain after it was promulgated within the statutory deadline. Therefore, it argued that the time limit for protesting the new rule should not apply to it. Surprisingly, the Court agreed, arguing that it was illegal for the rule to be applied to the plaintiff. According to the Court, the limitation on the period for attacking rules does not start from the moment when a rule has been promulgated. Rather, it starts from the point in time where an injury is suffered by someone subject to the rule, even if that injury did not exist (because the entity suffering the “injury” did not exist) at the time the rule was put in place.

This is an odd argument. Generally, when a new business is established, the owner has an obligation to understand the legal framework within which it must operate. For example, if a statute regulating air pollution is in force, a new entrant cannot claim raise objections years or even days after its enactment. A new firm must also take as given the laws governing contracts, torts, etc. Why should an executive rule be any different from a statute or a private law doctrine? Although the Court’s opinion did trigger a vigorous dissent, the dissenters only mention this argument in a parenthesis and do not develop it. Yet, it seems clear that no political-economic system could persist if its rules and regulations only apply to those who approve of them or are too busy or distracted to complain. Legal predictability, certainty, and ability to plan will all be severely strained.

So far, we’ve highlighted difficulties with key Supreme Court decisions from the last term that will frame US administrative law going forward. Now, combine the Loper Bright and Corner Post with Donald Trump’s arrival as president and assume that DOGE is in full swing inside the Executive Office of the President. the Executive Office of the President  It will likely suggest a range of supposedly “efficient” legal changes affecting policy. In this spirit,  DOGE’s wish list will likely include proposals that it announces as desirable without engaging in notice-and-comment rulemaking with the required public hearings and reason-giving. To the extent that its pronouncements end up being viewed as obligations on agencies, why won’t the businesses, interest groups, and individuals that lose out from DOGE’s instructions invoke Loper Bright and Relentless, as well as Corner Post, to argue that the cancelled policies were illegally terminated or downsized? Drawing on Loper Bright and Relentless, they could say that the DOGE-espoused policies are inconsistent with statutory language that set up the programs in the statute, and that DOGE’s (or the administration’s) views should not be entitled to deference. In addition, drawing on Corner Post, they can argue that they have been illegally excluded from the decision to eliminate, downsize, or redirect the program.

One response from the Executive could be that most government programs are not legally required to be funded. It is the responsibility of Congress to pass a budget and of the President to decide whether to sign it into law. And it is entirely within the mandate of the administration to set policy priorities. But how, exactly, does that feature of the US government apply to a regulatory body? Under Loper Bright and Relentless, the courts should not defer to the legal interpretations of the administration. Such deference seems especially unlikely if the administration proposes to interpret a statute in a way that is inconsistent with its long-established meaning. Even a judge who supports widespread deregulation of business may balk at a programmatic change that contradicts one in place for years, citing Loper Bright and Relentless as expressing his or her responsibility as a judge. Similarly, those who currently benefit from existing regulations could argue that under Corner Post they cannot be denied those benefits without an administrative process that gives them a chance to raise objections.

In other words, the language of Loper Bright, Relentless, and Corner Post, taken together,  though initially thought to be in sync with the Trump administration, may, in contrast, limit the ability of the Trump administration and the independent agencies to reinterpret well-established statutory meanings that have survived past judicial review. Will the federal courts be willing to overturn statutory interpretations relied upon not only by public agencies but also by regulated entities and those that deal with them? Will today’s courts try to second guess their predecessors, especially when a particular rule has garnered wide acceptance in both society and the courts. That remains, at best, unclear.

In fact, one can read some of the language in Chief Justice Roberts’s majority opinion in Loper Bright and Relentless in that vein. For example, his opinion recognized the practical necessity of judicial acceptance of some agency interpretative actions. He wrote that overruling Chevron should not automatically unsettle previous statutory precedents that relied on that case. And he also seemed to provide potential “loopholes” that could allow judges to defer to administrators’ interpretations, even as it ostensibly insists that deference is forbidden. For example, he emphasized the possibility that some statutes contain “delegations” that permit agencies to interpret the statutes that they administer, and he retained old caselaw suggesting that deference is due when issues of law are deeply entangled with issues of facts.

Whether the Court will in fact prove willing not just to talk the talk but also to walk the walk of the changes ushered in through its recent decisions remains to be seen. For those of us who are hopeful that some commitment to principle and consistency still exists even with this current Court, the hope is real—even if thin.

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