Challenging Agency Deregulation

Abstract

After decades of relative stability, the administrative state is experiencing two seismic shifts. First, in recent years, the Supreme Court has issued a series of decisions that significantly curtail the powers of administrative agencies. Second, newly reinaugurated President Trump is using administrative agencies to deregulate aggressively in his second term. The conventional wisdom is that the Supreme Court's recent precedent will facilitate the Trump Administration's deregulatory agenda. This Article argues the opposite. Instead of promoting agency deregulation, recent Supreme Court precedent restraining agency authority provides potentially powerful bases for challenging agency deregulation as administrative overreach. Time and time again, the Court has taken agencies to task for assertive or innovative actions that do not strictly comport with their statutory mandates. These factors apply equally to agency deregulation. Assertive and innovative agency deregulatory action can and should trigger many of the same concerns that the Court has cited in its decisions invalidating assertive and innovative agency regulation. The same considerations the Court has used in its recent cases to limit agency regulatory authority thus should curb agency deregulatory authority as well.

Keywords: administrative law, major questions doctrine, Supreme Court, administrative state, administrative agencies, deregulation, private property, state sovereignty