On November 26, the U.S. Supreme Court released its upcoming argument calendar, which included dates it will hear oral argument in three upcoming cases related to the administrative state.
On March 2, 2020, the court will hear Department of Homeland Security v. Thuraissigiam, which involves the question of when asylum seekers may challenge in traditional courts of law the decisions made during administrative agency adjudication hearings.
The court will hear two cases on March 3. In Seila Law v. Consumer Financial Protection Bureau, at issue is whether the structure of the Consumer Financial Protection Bureau violates the separation of powers. In Liu v. Securities and Exchange Commission, the court will decide the limits of the Securities and Exchange Commission’s enforcement powers.
In a statement published with the U.S. Supreme Court’s November 25 orders, Justice Brett Kavanaugh hinted that he would consider reviving the nondelegation doctrine. Suggesting that at least some congressional delegations of power are in his view unconstitutional, Kavanaugh argued that Justice Neil Gorsuch’s analysis of the nondelegation doctrine in Gundy v. United States (2019) “may warrant further consideration in future cases.”
The nondelegation doctrine is a legal principle that prohibits legislative bodies from delegating their legislative powers to executive agencies or to private entities. Gorsuch argued in his Gundy dissent that Congress cannot let administrative agencies decide major policy questions.
In his statement, Kavanaugh also pointed to a 1980 opinion written by former Chief Justice William Rehnquist, which said that “major national policy decisions must be made by Congress and the President in the legislative process, not delegated by Congress to the Executive Branch.” Kavanaugh said that the arguments made by Rehnquist and Gorsuch “raised important points that may warrant further consideration in future cases.”
Law professor Jonathan Adler, a critic of impermissibly delegated legislative power, responded to Kavanaugh’s statement saying that if Kavanaugh’s message is “not an invitation for litigants to bring additional non-delegation challenges” then he does “not know what is.”
Ian Millhiser, a Supreme Court writer for Vox who defends delegation as settled law, suggested that Kavanaugh’s statement is “significant because it shows that there are almost certainly five votes on the Supreme Court to slash agencies’ regulatory power.”
To learn more about the nondelegation doctrine, see here:
On December 9, the U.S. Supreme Court will hear oral argument in the case Thryv, Inc. v. Click-To-Call Technologies, LP. The case will determine whether people may challenge certain Patent Trial and Appeal Board (PTAB) decisions in court. A decision that restricts judicial review would make it harder for those who lose patent fights at the U.S. Patent and Trade Office to challenge those results in federal court.
The case arose when the PTAB allowed an inter partes review (IPR) of a patent. IPR is a procedure that allows a third party to both challenge a patent claim and request a review of the challenge before the PTAB as long as the challenge is filed within a statutory time limit.
Click-To-Call Technologies, LP (CTC) challenged the IPR, arguing that the time limit had expired. The PTAB rejected CTC’s challenge. Appeals courts wrestled with whether courts had jurisdiction to review the PTAB’s interpretation of the time limit. Now the U.S. Supreme Court will decide whether a statute restricting judicial review applies to the PTAB’s conclusion that the time limit to request IPR did not apply in this case.
On November 12, the U.S. Supreme Court heard oral argument in the case Department of Homeland Security v. Regents of the University of California. In this case, the court will decide whether the U.S. Department of Homeland Security (DHS) lawfully ended the Deferred Action for Childhood Arrivals (DACA) program. The DACA program protected certain individuals residing in the United States without legal permission from deportation and allowed them to go to school and work.
DHS argues that it had the authority to end DACA and that the Obama administration violated Administrative Procedure Act (APA) procedures and U.S. immigration laws in creating the program. Those who oppose how DHS ended DACA argue that the agency did not follow proper APA procedures and violated the rights of DACA beneficiaries.
The U.S. Supreme Court will likely announce a decision in the case next summer.
On December 9, the U.S. Supreme Court will hear oral arguments in Guerrero-Lasprilla v. Barr, a case that could determine whether courts may review how immigration judges rule on requests to reopen deportation cases.
In 1998, Pedro Pablo Guerrero-Lasprilla, a Colombian national living in the United States, was deported after being convicted of aggravated felonies. In 2016, he asked to reopen his removal proceedings. An immigration judge denied Guerrero-Lasprilla’s petition on the grounds that it was untimely. Later, the 5th Circuit Court of Appeals dismissed the petition, saying that it lacked jurisdiction to decide the case.
A U.S. Supreme Court decision to restrict when courts can review requests to reopen deportation cases would leave those who have been deported to accept the final decision of the relevant administrative agencies.
On November 1, the U.S. Supreme Court added twenty extra minutes for oral argument in the case Department of Homeland Security v. Regents of the University of California. Under Supreme Court Rule 28, each side is allowed 30 minutes to make their arguments, but the court has the authority to lengthen that time. In this case, the solicitor general will have 40 minutes to argue while the lawyers for the private parties and for the state officials on the other side will have 20 minutes each.
The case involves whether the U.S. Department of Homeland Security (DHS) lawfully ended the Deferred Action for Childhood Arrivals (DACA) program. The DACA program protected certain individuals residing in the United States without legal permission from deportation and allowed them to go to school and work.
DHS argues that ending DACA was within its discretionary authority and that the Obama administration violated Administrative Procedure Act (APA) procedures and U.S. immigration laws in creating the program. Those who oppose how DHS ended DACA argue that the agency did not follow proper APA procedures and violated the rights of DACA beneficiaries.
The U.S. Supreme Court scheduled argument in the case for November 12.
On September 25, a group of 17 states, Washington, D.C., and New York City, joined together to sue the Trump administration in an effort to block three new rules that changed how federal agencies enforce the Endangered Species Act (ESA). The lawsuit argues that the U.S. Fish and Wildlife Service and National Marine Fisheries Service failed the Administrative Procedure Act’s (APA) arbitrary-or-capricious test when they issued the rules in August.
The arbitrary-or-capricious test is a legal standard of review judges use to assess actions taken by administrative agencies. The test came from a provision of the 1946 Administrative Procedure Act, which instructs courts reviewing agency actions to invalidate any that they find to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Judges use the test most often to assess the facts underlying an agency rulemaking.
According to the Trump administration, the rule changes related to the ESA reduce the regulatory burden and increase agency transparency. Opponents of the rules argue that the changes limit the ability of agencies to respond to perceived problems.
The states filed the lawsuit in the United States District Court for the Northern District of California. The 17 states that joined the lawsuit are California, Massachusetts, Maryland, Colorado, Connecticut, Illinois, Michigan, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.
On September 24, a panel of judges on the Fifth Circuit Court of Appeals ordered the Securities and Exchange Commission (SEC) to delay enforcement proceedings against an accountant until after the court resolves a pending legal challenge. The accountant, Michelle Cochran, argues that since the president cannot fire the SEC Administrative Law Judge (ALJ) that will oversee her agency hearing, the ALJ has unconstitutional protections. The Fifth Circuit will now decide whether SEC ALJs operate in line with the U.S. Constitution.
An ALJ is an official who presides over federal administrative hearings. ALJs serve as both the judge and the jury in an administrative hearing. The Administrative Procedure Act (APA) requires that administrative law judges preside over hearings during formal adjudication proceedings, but they may also preside over hearings during informal adjudication. Adjudication proceedings aim to resolve disputes between either agencies and private parties or between two private parties.
According to a summary provided by her lawyers, Cochran’s case started in 2016, when she was charged with violating accounting standards. An SEC ALJ ruled against her in 2017, fined her, and banned her from practicing as an accountant for five years. Soon after, the U.S. Supreme Court decided _Lucia v. SEC_. In that case, the court ruled that SEC ALJs were officers of the United States and had to be appointed by the president according to the procedures in the U.S. Constitution.
Since the ALJ who made the 2017 ruling against Cochran was not appointed by the president, the SEC decided that a new, properly appointed, ALJ had to re-hear her case. Now, Cochran is challenging the civil service removal protections that keep presidents from firing SEC ALJs once they have been appointed. She argues that the ALJs enjoy layers of removal protections similar to those the U.S. Supreme Court found unconstitutional in the 2013 case _Free Enterprise Fund v. PCAOB_.
Cochran is represented by the New Civil Liberties Alliance (NCLA), a public interest law firm in Washington, D.C. The judges on the Fifth Circuit panel were Reagan-appointee Edith Jones, Obama-appointee Stephen Higginson, and Trump-appointee Andrew Oldham.
On September 6, 2019, the Fifth Circuit Court of Appeals ruled 9-7 that the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional. The Fifth Circuit sent the case back to the district court to decide how to resolve remaining questions about how the FHFA decided to handle the finances of Fannie Mae and Freddie Mac.
The FHFA was created by Congress in the aftermath of the 2008 recession as an independent agency to regulate the United States mortgage market. This case, _Collins v. Mnuchin_, involved whether the FHFA had the authority to require Fannie Mae and Freddie Mac to give nearly all of their money to the U.S. Treasury Department each quarter instead of to the companies’ shareholders. The companies argued that such an arrangement went beyond the FHFA’s legal authority and that the structure of the agency was unconstitutional.
The Fifth Circuit held that the FHFA for-cause removal structure “limits the President’s removal power and does not fit within the recognized exception for independent agencies.” The U.S Supreme Court established that exception for agencies led by multi-member boards in the 1935 case _Humphrey’s Executor v. United States_. The Fifth Circuit held that court precedent does not support removal protections for agencies led by single directors like the FHFA.
The court also held that “an independent agency with a single Director removable only ‘for cause,’ violates the separation of powers.” In this context, separation of powers refers to the three divided branches of the United States federal government: legislative, executive, and judicial. Under a strict reading of the U.S. Constitution, each branch has distinct powers and responsibilities and Congress is not allowed to create independent agencies that blend those powers.
The majority opinion cited the 2010 U.S. Supreme Court case _Free Enterprise Fund v. PCAOB_ to support severing the removal protections from the FHFA statute and leaving the rest of the law in place.
On September 11, the U.S. Supreme Court granted the Trump administration’s request to lift an injunction that was blocking the enforcement of a new rule dealing with asylum seekers. The court’s order allows the rule to go into effect while legal challenges against it come before the 9th Circuit Court of Appeals and, potentially, the U.S. Supreme Court.
Justice Sotomayor, joined by Justice Ginsburg, wrote a four-page dissent from the U.S. Supreme Court’s decision. The rule in question allows federal agencies to deny asylum applications made by those who traveled through a third country before arriving at the U.S. border after failing to apply for asylum in that third country first. Among the reasons Sotomayor would have left the injunction in place, she argued that the rule violated administrative procedures that give the public time to comment on proposed rules before they take effect. She also suggested that agency explanations of the rule might fail the arbitrary-or-capricious test, which requires courts to invalidate rules that are arbitrary, capricious, an abuse of discretion, or contrary to law.
In the government’s request for a stay from the Supreme Court, U.S. Solicitor General Noel Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the Administrative Procedure Act (APA). The agencies that issued the asylum rule argued that immigration enforcement challenges on the southern border allowed them to issue the rule under the APA’s good cause exception to notice-and-comment procedures. The good cause exception allows agencies to issue rules without waiting for public comment if those procedures would be “impracticable, unnecessary, or contrary to the public interest.”
On September 9, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California had restored the nationwide injunction against the asylum rule. He had originally issued a nationwide injunction against the rule in July, but the 9th Circuit Court of Appeals narrowed its scope to only those states within the 9th Circuit in an August ruling.
Judge Tigar argued that he had to block the asylum rule nationwide. He said organizations that help asylum seekers with offices in several states would otherwise have to spend money and time figuring out whether a particular applicant was covered by a narrower injunction.