The Future of Retroactive Adjudication and Chenery II: Statutory and Constitutional Considerations for FDA v. Wages and White Lion, L.L.C.

Abstract

A year after the Administrative Procedure Act was codified in 1946, the Supreme Court decided SEC v. Chenery Corp., known as Chenery II, which is widely cited for the principle that an agency, in its total discretion, may choose to develop law through either adjudication or rulemaking when an authorizing statute does not foreclose either path. Such power has given agencies great flexibility in applying new law to past conduct in adjudicatory proceedings, even to parties that were not involved with the adjudication. However, a closer reading of the decision in Chenery II and the United States Constitution in cases currently before the Supreme Court could challenge the legality of such retroactive powers. This note argues that FDA and other similarly situated agencies have relied on an overreading of the Supreme Court’s instruction in Chenery II and that prospective rulemaking should at least be preferred to legal standards that are first articulated and applied retroactively through agency adjudication proceedings.

Keywords: Statutory and Constitutional Considerations for FDA v, Wages and White Lion, L, L, C