Eugene Scalia has emerged as a significant player in corporate America’s effort to curb what they perceive as an overstepping of authority by the current US administration under President Joe Biden.
Scalia, a lawyer by profession and the son of the late Supreme Court Justice Antonin Scalia, has been confronting federal power on behalf of the corporate sector, spotlighting issues such as pollution disclosure rules, a ban on worker non-compete agreements, and a new definition of an independent contractor that supersedes one he established during his tenure as US Labor Secretary.
A specialist in undoing rules under the Administrative Procedure Act (APA), an almost 80-year-old law governing federal agencies’ rule-making processes, Scalia has seen his legal practice at Gibson Dunn & Crutcher gain momentum amid the rule-heavy agenda of the Biden administration. The current push is an attempt to counter resistance in Congress whilst also facing a Supreme Court heavily leaning towards conservatism.
Data shows an increase in challenges to the APA. The number of APA challenges in 2023 was three times more than in 2013, according to an analysis by Bloomberg Law. Ron Levin, a law professor at Washington University in St. Louis, suggests this is due to a growing trend of administrative agencies taking on roles traditionally filled by Congress.
Furthermore, Scalia’s time as President Donald Trump’s Labor Secretary provided him with a unique insight into the workings of federal agencies, aiding his fight against what he, and others, see as agency overreach.
Today, among Scalia’s clientele are numerous corporations and prominent trade groups. Significant legal battles include representing the Chamber of Commerce in a series of federal and state actions challenging rules around companies’ greenhouse gas emissions disclosure, as well as leading the legal strategy for the Bank Policy Institute as it opposes caps on credit card late fees and a proposed overhaul of bank capital requirements.
Scalia’s proactive approach to challenging the wide-reaching rules from federal regulatory bodies like the Securities and Exchange Commission has also extended to representing Coinbase Global Inc., in a review of the SEC’s decision on how digital assets are classified.
In sum, legal challenges, such as the ones made by Scalia, indicate a growing skepticism towards agency rulemaking, a scenario Scalia plans to leverage. While these cases are primarily disagreements of policy, according to Adam Pulver, an attorney at Public Citizen, they’ve begun to gain more traction than they would’ve 20 years ago, raising vital questions around the balance of power between administrative agencies and Congress.