On October 9, an NYU Law Forum titled “The Administrative State in Turmoil” weighed the multifaceted ramifications of recent US Supreme Court decisions, such as Loper Bright v. Raimondo, that have affected the power of government agencies to write, interpret and enforce regulations. Last June, in Loper Bright, the Court overturned the four decade-old Chevron doctrine that required courts to defer to a federal agency’s interpretation of statutes.
Forum panelists Sam Bagenstos, general counsel of the US Department of Health and Human Services, and Boris Bershteyn, a partner at Skadden, Arps, Slate, Meagher & Flom and former general counsel of the Office of Management and Budget, explored the potential impact of Loper Bright and other cases on regulations involving the environment, health, AI, the economy, and other issues. The panel examined how these rulings will play out inside courtrooms across the country, as well as their political implications. Segal Family Professor of Regulatory Law and Policy Catherine Sharkey and Associate Professor Noah Rosenblum, a specialist in administrative and constitutional law and legal history, co-moderated the discussion.
Watch the full discussion on the administrative state on video:
Selected remarks from the discussion:
Sam Bagenstos, general counsel of the US Department of Health and Human Services:
“[W]hen judges really want to make a decision about what the law means, they will. And when judges get their eyes glazing over because it’s too specialized an area, or it’s one that doesn’t involve enough money or enough of an ideologically inflected question, they’ll more likely than not defer to what the agency says. And that’s just as a practical matter what they do, because one of the things about agencies is [that] they deal with [the] kinds of questions and areas of the law and the economy that generalist judges don’t tend to deal with a lot. And judges tend to be very certain of their ability to decide things, but also don’t tend to want to take the time to really dig into complex administrative regimes where it doesn’t seem to matter hugely. Now in the big ideological cases and the big money cases, that’s different.” (video 46:02)
Boris Bershteyn, partner at Skadden, Arps, Slate, Meagher & Flom:
“And it’s not just a blue or red thing, but also about are we going to live in an era of divided government, where a lot of policy work is going to be done through executive actions, perhaps, under tenuous legislative authority. Or is it going to be an aligned government where we’re going to see some major legislation…like some of the statutes we talked about today, [the] Affordable Care Act, Dodd-Frank Act, [that] all came from that short period when President Obama had [a] Democratic Congress? And are we going to see more of that, and is that going to drive the next wave of changes in the law, the next wave [of] cases?” (video 1:12:31)
Posted November 25, 2024