It’s hard to imagine a more interesting year to have chaired the ABA’s Administrative Law Section. The Court renounced Chevron deference but affirmed the Consumer Financial Protection Bureau’s fiscal independence. In Jarkesy, the justices held that agencies can’t avoid the Constitution’s right to trial by jury in agency adjudications, but they declined to reach the case’s nondelegation and Appointments Clause issues. In Corner Post, the Court opened the door to at least some new litigation over old rules through its interpretation of the default six-year statute of limitations. But in Murthy and Alliance for Hippocratic Medicine, the Court shut the courthouse doors to two significant regulatory cases on standing grounds. And in Ohio v. EPA, the Court’s rejection of the EPA’s latest cross-state air pollution rule continued the trend of taking ever harder looks at agency actions.
And that’s just the Supreme Court! In the lower courts, state courts, Biden Administration, and Congress, we saw a fascinating array of new developments. I won’t attempt to unpack all of them in this column. Surely analyses of those cases and policies will fill not just the pages of this issue of ARLN, but several issues to follow, as well as countless posts in the Section’s “Notice and Comment” blog at the Yale Journal on Regulation.
In a recent issue of Barron’s, Prof. Cary Coglianese called the Loper Bright decision a “legal earthquake.” I would call it a judicial “vibe shift.” The tenor of judicial review of agency action has changed significantly over the last decade, across three presidential administrations. The overall trend is pretty clear.
Still, it’s too soon to say for sure what all of this will ultimately produce. It took decades to see Chevron’s full effects on courts, agencies, Congress, and the White House. In the same way, we will need years, maybe decades, to see how Loper Bright changes the hydraulic forces in each of those institutions. But it’s not too soon to start researching, writing, and reflecting on it. Nor is it too soon to think about what might come next.
But are we up to that task? How can the Section contribute to those conversations and bring out the best in our profession?
That kind of question was on my mind seven years ago in a 2017 post for Notice and Comment. There, I wondered if practitioners of administrative law might be inherently slow to recognize changes in the field. It wasn’t meant as a slight to any of our friends and colleagues. Rather, it was a recognition that the best experts in any field are often so focused on building out extant intellectual or doctrinal frameworks that they are slow to see major changes coming from outside the field. That was the theme of Thomas Kuhn’s classic 1962 book, The Structure of Scientific Revolutions. Hence the title of my Notice & Comment post, The Structure of Regulatory Revolutions.
As the Section’s chairman, I had the pleasure of writing three Chair comments in ARLN this year, which focused on administrative law’s intersections with geopolitics, infrastructure policy, and civil service reform. They were three very different topics, but the common thread was an attempt to point beyond the field of administrative law to broader questions of national security, technology, politics, and culture. The doctrines of administrative law have always been shaped by such larger questions and always will be—not just a larger sense of the proper ends of government and the role of judicial review in government, as shaped administrative in the 1940s and 1980s—but also a sense of the best means for achieving those ends, as we see in timeless questions over the respective paces of technological change and governmental action. That doesn’t change our roles as practitioners, scholars, and judges. But the future of administrative law will always depend on questions larger than administrative law itself. It’s like the quip, often ascribed to novelist William Gibson: “The future is already here. It’s just not evenly distributed yet.”
My admittedly dim sense is that the future of administrative law, at least for the next couple of decades, will be found more often than before in financial regulation. From the SEC’s and other agencies’ attempts to incorporate climate risk and other policy questions into securities regulations or bank supervision, to deeper questions about the very nature of bank supervisory regulation itself; regulatory questions about FinTech and cryptocurrency, constitutional questions about the traditionally independent regulatory commissions, and beyond, the financial sector will be a wellspring of fascinating substantive and procedural questions.
Regardless of where tomorrow’s cases come from, I hope that the Section will help to lead the way in studying and discussing these issues. To that end, we should do everything possible to expand and diversify our membership. Today our membership and leadership draw overwhelmingly from the government sector and academia. I’ve been lucky to work with great colleagues from those communities. But is the Section—and the larger ABA—doing enough to attract members and leadership broadly from the private sector, too? If I have one regret from my year as chairman, then it centers around that shortcoming.
I’m grateful for the chance to serve as chairman this year, just as I’m grateful for the years I’ve enjoyed on the council, first as a member and then in leadership. I’m grateful to all the colleagues who made this year so enjoyable, especially my predecessor Jill Family; the Section’s vice chair, Amy Wildermuth, and everyone who co-chaired the fall and spring conferences; our section executive Anne Kiefer and her colleague Rebecca McAdoo; the rest of the council; and, of course, the ARLN’s excellent work under Dan Walters’s leadership.
Finally, I’m grateful for one more year on the council, now under the leadership of my friend Dan Cohen. In such interesting and challenging times, we’re lucky to have Dan leading us forward.
All the best,
Adam White
