The Top 10 Takeaways for Businesses from the Supreme Court’s Three Big Administrative Law Decisions in 2024

Now that the dust has settled following the Supreme Court’s overhaul of administrative law through three late-term decisions, Akin litigators and policy advisors offer the most significant takeaways for businesses and individuals impacted by federal regulations.

Loper Bright Enterprises v. Raimondo,¹ Corner Post Inc. v. Board of Governors,²  and SEC v. Jarkesy³—three 6-3 decisions all decided at the tail end of the OT 2023 term—radically alter the administrative law landscape. Loper Bright overruled Chevron v. Natural Resources Defense Council,⁴  which required courts to defer to agency regulations interpreting ambiguous statutes as long as the interpretation was “reasonable.” Now, an agency’s statutory interpretation will generally be upheld only if it is the “best interpretation” of the statute. Corner Post held that the six-year statute of limitations to facially challenge agency rules runs from the date a plaintiff suffers injury from the rule, rather than from the promulgation of the rule. And Jarkesy held that the Securities and Exchange Commission (SEC) cannot bring civil penalty enforcement actions through administrative proceedings and instead must initiate court proceedings that include a jury trial.

Collectively, these three decisions continue a trend of recent Court decisions that weaken agency authority and provide new avenues for challenging agency action. To that end, here are the top ten things businesses should know about these decisions:

1. Administrative agencies are weaker. For the last 40 years, agencies had the primary power of interpreting statutes that were less than crystal clear, and the SEC (and other agencies) could opt to bring significant civil enforcement actions in-house rather than in federal court. But after Loper Bright, courts now have the responsibility to determine what interpretation is “best.” And after Jarkesy, the SEC—and likely other agencies—can no longer seek civil penalties through administrative proceedings, but rather must proceed before federal juries. These and other decisions in recent terms (such as the announcement of the major questions doctrine in West Virginia v. EPA⁵) mean that agencies enjoy significantly less regulatory authority than they did just a few years ago.
2. Litigants have stronger grounds to challenge agency action. Conversely, Loper Bright and Jarkesy have given greater power to those interested in challenging agency action, by opening up new avenues and arguments for attacking both agency regulations and the means by which those regulations are enforced. And Corner Post expands the universe of regulations subject to facial challenge.
3. Settlement should be easier. The prior two points mean that many regulated parties now have a strengthened hand in negotiations with agencies—thus encouraging settlements that might avoid litigation altogether.
4. All regulations (even really old ones) are fair game. Not only are regulations subject to greater levels of scrutiny, but agency regulations previously thought safe are now at risk, too. Under Corner Post, any business injured by a regulation for the first time within the prior six years may bring a facial challenge—even if the regulation was first promulgated decades ago.
5. Older Chevron cases require a second look. Loper Bright said that it was not intended to disturb precedent upholding regulations under the Chevron framework—but that statement is far from an ironclad guarantee. Thus, any agency statutory interpretation previously upheld as a “reasonable” interpretation—rather than the “best” one—should now be considered vulnerable.
6. Not just agency actions, but agency structures and procedures, are at risk. Although Loper Bright and Corner Post involved challenges to specific agency actions, Jarkesy opens the door to challenging the way an agency brings those actions—specifically, by allowing a collateral attack on the agency’s choice to pursue civil penalties in house (rather than in federal court). Because more than two dozen other agencies—such as the Consumer Financial Protection Bureau (CFPB), Department of Justice (DOJ), Federal Energy Regulatory Commission (FERC), Department of Health and Human Services (HHS), Environmental Protection Agency (EPA), Department of Housing and Urban Development (HUD), Federal Communications Commission (FCC), Department of Transportation (DOT), Commodity Futures Trading Commission (CFTC), Merit Systems Protection Board (MSPB), Food and Drug Administration (FDA), Occupational Safety and Health Administration (OSHA), the Postal Service, and the Treasury—can similarly impose civil penalties in administrative proceedings, businesses should now consider raising Jarkesy as a defense to other in-house enforcement proceedings.
7. Forum is key. The opinions in all three cases fell along the same ideological lines, with the six conservative-leaning justices in the majority, and three progressive-leaning justices in dissent. Businesses therefore can predict that they will receive a more receptive audience for administrative challenges in forums that are home to more conservative-leaning judges—such as the 5th, 6th, 8th and 11th Circuits. 
8. Opportunities to prompt administrative rule changes may become more limited... Because agencies are limited to the “best” interpretation of a statute, their ability to shape policy through rulemakings interpreting statutory authority will likely be hampered. As a result, it may become more difficult for interested parties to convince agencies to effect administrative rule changes following changes in administration (or otherwise).
9. …but legislative drafting takes on new significance. On the flipside, Loper Bright requires Congress to take more responsibility for its drafting choices, as it can no longer rely so heavily on broad and vague agency directives.  Instead, Congress must give far clearer instructions—or alternatively, more explicit delegations of interpretive responsibility—in order to accomplish its goals. Businesses’ lobbying strategies should thus focus on ensuring that critical legislation is drafted with the necessary specificity to survive challenge. 
10. This is not the end of the administrative state. Notwithstanding these major changes, a word of caution: agencies still enjoy significant power. For example, Loper Bright makes clear that courts should continue to defer to agencies’ factual conclusions and interpretations of their own regulations, as well as to give respectful consideration to an agency’s experience and expertise in administering a statute. And Congress can still delegate major authority to agencies—Loper Bright and West Virginia v. EPA (articulating the major questions doctrine) just require such delegation to be clear. Nevertheless, the last few terms have undeniably made the litigation playing field much more level between the regulators and the regulated.

The combined impact of Loper Bright, Corner Post and Jarkesy represents a substantial realignment in the balance of power among the three branches of the federal government. For regulated businesses injured by agency actions (and inaction), these decisions also present important new opportunities. Akin’s appellate and administrative law litigators, along with its lobbying & public policy teams, are here to help.

^{1 Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).}

^{2 Corner Post Inc. v. Board of Governors, 144 S. Ct. 2440 (2024).}

^{3 SEC v. Jarkesy, 144 S. Ct. 2117 (2024).}

^{4 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984).}

^{5 West Virginia v. EPA, 597 U.S. 697 (2022).}