Notice & Comment

Admin Law Issues in Pending and Decided Cases in Supreme Court OT 2023, as of March 6, 2024, by Jonathan Sheffield

The following is a list of the Administrative Law topics in pending and decided cases so far in the Supreme Court’s October 2023 Term.  I made this list for the admin law class I teach this spring at the University of Illinois Chicago because students expressed strong interest in class topics currently at the Court, and not just the hot button issues. My sources are below, if you would like additional information on each case.

The list consists of twelve cases, nearly 20% of the Court’s 61-case non-emergency docket this term. The list’s sheer size illustrates how significantly this term alone will affect agencies, even setting aside the significant questions in cases at the top of this list. And the breadth of topics on the list shows how challenging it has become to teach an admin law class concurrently with rapid changes in this important area of law.

Hopefully you find this list comprehensive and useful for your own purposes, whether you teach, practice, or are just interested in admin law.

  • Chevron Deference’s Demise or Facelift. Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, a pair of cases in which the Court will decide whether to overrule or modify its nearly 40-year-old decision in Chevron v. Natural Resources Defense Council. At a minimum, the Court is asked to clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in a statute does not constitute an ambiguity requiring deference to the agency. 
  • Statute of Limitations for APA Facial Challenges to Agency Regulations. Corner Post, Inc. v. Board of Governors of the Federal Reserve System, in which the Court will decide whether a plaintiff’s Administrative Procedure Act claim “first accrues” under 28 U.S.C. § 2401(a) when an agency issues a rule or when the rule first causes harm to the plaintiff.
  • Adjudicatory Power of SEC (and Other Agencies). Securities and Exchange Commission v. Jarkesy, in which the Court will decide whether the statutory scheme that empowers the Securities and Exchange Commission to bring in-house enforcement actions alleging securities fraud and seeking statutory penalties violates the Seventh Amendment, the nondelegation doctrine, or Article II of the U.S. Constitution.
  • Independent Agency Power/CFPB Funding Structure ChallengeConsumer Financial Protection Bureau v. Community Financial Services Association of America, in which the Court will decide the constitutionality of the funding scheme for the Consumer Financial Protection Bureau (and potentially for agencies with a similar funding scheme).
  • ATF’s Regulation of Bump Stocks. Garland v. Cargill, in which the Court will decide whether the Bureau of Alcohol, Tobacco, Firearms, and Explosives properly re-interpreted the definition of “machinegun” under 26 U.S.C. § 5845(b) to include bump stocks, a device that can permit semi-automatic weapons to maintain a continuous firing cycle. 
  • FDA Mifepristone Approval. Food and Drug Administration v. Alliance for Hippocratic Medicine, in which the Court will resolve a challenge to the Food and Drug Administration’s 2016 and 2021 approvals of the abortion drug mifepristone.
  • EPA Regulation of States’ Emissions. Ohio v. Environmental Protection Agency, in which the Court is asked to both stay the Environmental Protection Agency’s “Good Neighbor Plan,” under which 23 states must amend their emissions plans to reduce air pollution from power plants and other industrial facilities, and to decide whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule.
  • NLRB’s Evidentiary Burden for Injunction Against Unfair Labor PracticesStarbucks Corporation v. McKinney, in which the Court will decide what evidentiary test courts must use to evaluate the National Labor Relations Board’s requests for injunctions under Section 10(j) of the National Labor Relations Act.
  • Agencies’ Sovereign Immunity Waived for FCRA ClaimsDepartment of Agriculture Rural Development Rural Housing Service v. Kirtz, in which the Court held that federal administrative agencies may be sued under the Fair Credit Reporting Act because Congress clearly waived federal sovereign immunity in that statute.
  • Mootness & Agency’s Voluntary Cessation. Federal Bureau of Investigation v. Fikre, in which the Court will decide whether respondent’s claims challenging his placement on the FBI’s No Fly List are moot given that he was removed from the No Fly List in 2016 and the government provided a sworn declaration stating that he “will not be placed on the No Fly List in the future based on the currently available information.”
  • Preclusion of Judicial Review of Immigration Determinations concerning Cancellation or Withholding of Removal. Wilkinson v. Garland, in which the Court will decide whether immigration authorities’ determination that a given set of facts does not meet the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or instead is a discretionary judgment unreviewable under Section 1252(a)(2)(B)(i).
  • Denial of Visas to Non-citizen Spouses of U.S. Citizens. Department of State v. Munoz, in which the Court will decide whether the denial of a visa to the non-citizen spouse of a U.S. citizen infringes a constitutionally protected interest of the citizen and, if so, whether the government properly justified that decision.

 Sources for additional background:

Jonathan Sheffield is an Assistant Attorney General in the Illinois Attorney General’s office. He also serves as an adjunct professor at Loyola University Chicago, DePaul University, and the University of Illinois Chicago.

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