In light of a series of pivotal Supreme Court rulings, there is a growing call for the federal government to reassess how agencies interpret their statutory authority. Donald Kochan, a law professor at George Mason University, argues that President-elect Donald Trump should direct federal agencies to conduct comprehensive audits to ensure that their actions align with constitutional and statutory limits. This proposal emphasizes the necessity for agencies to adapt to evolving legal standards, particularly following recent judicial decisions that reconsider the scope of agency power.
The proposed audits would align agency actions with US Supreme Court precedents, including the decision in West Virginia v. EPA. In this case, the Supreme Court enforced the “major questions” doctrine, requiring explicit legislative directives from Congress when delegating authority to agencies over significant issues like climate change. The audits would also consider the impact of Loper Bright Enterprises v. Raimondo, which abandoned the Chevron deference doctrine that had previously allowed agencies lenience in interpreting their statutory mandates.
Additionally, Corner Post, Inc. v. Board of Governors further influences the need for retrospective accountability, as it expands the window for legal challenges to past regulations. This decision means plaintiffs may challenge regulations decades after their enactment, provided they are negatively influenced by the agency’s actions. Justice Ketanji Brown Jackson’s dissent in the case underlined the potential floodgate of litigation from such interpretations, which could retrospectively affect decades of regulatory action.
The audits proposed by Kochan are analogous to corporate audits that assess liabilities and vulnerabilities post-major decisions. As federal agencies navigate significant changes in administrative law, these audits could offer a proactive approach to align agency actions with constitutional mandates. Without an executive order, there remains a risk that federal agencies might continue without adequately addressing these fundamental changes, potentially resulting in increased legal challenges.
Such measures are argued to be not only good governance but also necessary to uphold the fiduciary responsibility owed to Congress and the public. As these judicial decisions challenge the foundational interpretation of agency authority, the next administration faces an opportunity to mandate critical agency introspection to ensure lawful compliance with current legal frameworks.
For a deeper analysis, see the full article at Bloomberg Tax.