The Supreme Court's Regulatory Reckoning Empowers Consumers

The recent Supreme Court decisions in Loper Bright and Corner Post have set a significant precedent reshaping the landscape of administrative law. Overnight, I was thinking about how these two cases interact with each other and ultimately represent a victory for consumers that will lead to the dismantling of the administrative state that has been built up over the past 40 years. Corner Post is monumental because, when examined in light of Loper Bright, it opens the door for a retrospective examination of every administrative regulation promulgated in recent history. This kind of scrutiny is beneficial because it will allow consumers to challenge the so-called “deep state” and herald a new era of consumer empowerment.

The dissent in Corner Post accurately evaluated the consequences of the decision in light of Loper Bright, but it unsatisfyingly arrived at the wrong conclusion. Justice Jackson wrote:

Now, every legal claim conceived of in those last four decades—and before—can possibly be brought before courts newly unleashed from the constraints of any such deference. Put differently, a fixed statute of limitations, running from the agency’s action, was one barrier to the chaotic upending of settled agency rules; the requirement that deference be given to an agency’s reasonable interpretations concerning its statutory authority to issue rules was another. The Court has now eliminated both. Any new objection to any old rule must be entertained and determined de novo by judges who can now apply their own unfettered judgment as to whether the rule should be voided.

While this concern highlights the profound impact of the decisions, it also underscores the necessity for rigorous oversight of the administrative state’s interpretations of statutes that conflict with the plain statutory text. The dissent’s perspective inherently reinforces the need for transparency and accountability in government actions, principles that are foundational to our constitutional form of government and the separation of powers.

A very good lawyer also recently corrected my initial thoughts about the scope of the Corner Post decision I wrote about yesterday. By the very text of the opinion, it seems not to apply to the Hobbs Act and keeps the 60-day limit on Hobbs Act challenges intact. This distinction is crucial for consumers as it preserves the expedited timeline for telemarketers to challenge specific agency orders under the Hobbs Act while allowing consumers to take advantage of extended review periods for other administrative actions under the APA, like the disastrous PDR Network decision.

For years, the executive has over-wielded its authority to direct agencies to enforce rules in a sweeping and often arbitrary manner, untethered to the statutory text and driven by the shifting winds of political power. One need only to look at conflicting circuit court decisions in interpreting the FCC’s wishy-washy interpretation of the TCPA’s statutory ATDS definition to arrive at that result. I feel one of the many reasons that plaintiffs have been losing so many ATDS cases recently is because of the FCC’s bizarre interpretation of a plainly-written statutory definition, causing courts to over-correct and hold that equipment is an ATDS only if it randomly or sequentially generates telephone numbers themselves.

In short, executive agencies’ indiscriminate and uninformed interpretations of clear statutory text have allowed challengers to deceptively argue that the statutory text is actually narrower than it is, representing a loss for consumers. Loper Bright and Corner Post put a stop to that and reinforced the judiciary’s mandate to engage in an informed intellectual analysis of the statute at issue. By opening the floodgates to challenge potentially anti-consumer regulations, consumers can now advocate for their rights more effectively by reference to the plain statutory text as those ordinary terms were understood by the general public at the time they were adopted. Regulations and interpretations that may have been implemented without sufficient consideration of the consumer impact Congress intended to remedy when it drafted the statute can be revisited and revised, fostering a regulatory environment that prioritizes consumer welfare.

Consumers stand to benefit immensely from this shift. No longer will they be subjected to the arbitrary enforcement of regulations that serve political agendas rather than public interests. Instead, they will enjoy greater protection from unjust rules and regulations by tethering interpretations to statutory text, ensuring that executive agencies are always held to account. This change not only challenges the deep state but also empowers consumers, ensuring that statutes serve the public interest as Congress intended. As we move forward, this newfound ability to scrutinize and challenge administrative regulations, including anti-consumer FCC interpretations at odds with the statutory text, promises to enhance the integrity and responsiveness of our governmental institutions.