Elena Chachko (UC Berkeley School of Law) has posted The Anti-Regulation Quartet and Internationally Informed Regulation (Harvard Law Review) on SSRN. Here is the abstract:
Two terms ago, the Supreme Court delivered the Major Questions Quartet. This term produced what commentators widely view as the Anti-Regulation Quartet. The Supreme Court delivered four decisions that, taken together, will likely make life much harder for regulators. The Anti-Regulation Quartet has triggered intense debate and analysis. One important area that has not received much attention, however, is internationally informed agency action. International engagement is widespread in agency practice through implementation of international agreements, adoption of soft law regulatory standards, harmonization of regulations with foreign countries, incorporation of general foreign policy objectives in regulation and more. Internationally informed agency action raises a distinctive set of doctrinal complications left unaddressed by the Court.
In Loper Bright Enterprises v. Raimondo, the Court overruled Chevron’s formulation of deference to agency interpretations of statutes. In SEC v. Jarkesy, the Court held that the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against them, possibly deflating a powerful SEC enforcement tool. In the somewhat less publicized case of Corner Post v. Board of Governors of the Federal Reserve System, the Court opened a path for litigants newly injured by final agency action to challenge it regardless of the APA’s six-year statute of limitations. The implication is that even older, settled regulations could now face new legal challenges. And in Ohio v. EPA, the Court indicated that courts should apply more exacting standards than the current status quo in reviewing how agencies respond to comments in notice and comment rulemaking.
In this essay, I highlight the unique features of internationally informed regulation and outline preliminary thoughts about the potential implications of the Court’s decisions. One key implication is that a host of internationally informed regulations that don’t fit within the Court’s idea of foreign affairs and national security actions have been made much more vulnerable by the Anti-Regulation Quartet. Clear-cut foreign affairs and national security actions are unlikely to be significantly affected. But internationally informed agency actions outside a vaguely defined foreign affairs and national security core are now at greater risk — at least as a matter of doctrine.
Internationally informed regulation also encapsulates and highlights the tension between the Court’s staunch constitutional presidentialism and its deep skepticism of the administrative state. That tension complicates predictions on how the Court might assess internationally informed regulations in the future. Internationally informed regulation is intertwined with the President’s foreign affairs powers, and yet it is unlikely to benefit from the Court’s deference to the President in that area.
