The Supreme Court continues to accept for review cases that challenge agency authority on separation of powers grounds, and its decisions may fundamentally reshape the modern administrative state. This term, it heard challenges to the jurisdiction of federal courts to hear challenges to agency proceedings (Axon v. FTC; SEC v. Cochran), and to the Biden administration’s authority to forgive student loan debt (U.S. Department of Education v. Brown; Biden v. Nebraska). Next term, it will hear a constitutional challenge to the funding structure of an independent regulatory agency (CFPB et. al. v. Com. Fin. Services Assn.). And pending in the certiorari queue is a case that raises a triumvirate of issues about the SEC’s administrative proceedings: whether they violate the Seventh Amendment, the non-delegation doctrine, and/or the President’s removal power (SEC v. Jarkesy).
This panel will discuss the constitutional questions raised by these cases, the potential effect of the Court’s decisions on agency structure and practices, the rebalancing of power between the three branches, and the future of the administrative state.