Abstract

The administrative state is experiencing two seismic shifts. First, in recent years, the Supreme Court has issued a series of decisions that significantly curtailed the powers of administrative agencies. Second, President Donald Trump is using administrative agencies to aggressively deregulate 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 a potentially powerful basis 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

ISSN

1045-4241

Keywords

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

Disciplines

Administrative Law | Agency | Law | Property Law and Real Estate | State and Local Government Law | Supreme Court of the United States

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