Judges Raise a Glass to High Court Rulings Curbing Agency Power

DC Circuit Judge Neomi Rao and Florida federal judge Kathryn Mizelle raised a glass of champagne at a Federalist Society event in honor of recent Supreme Court rulings that gave judges more authority to interpret regulations.

Philip Hamburger, a Columbia Law School professor speaking on a Friday panel on administrative law, popped a bottle of champagne, poured it in the glasses of his co-panelists, and offered a toast to a list of recent Supreme Court rulings that limited the power of federal agencies.

The panel is part of the Federalist Society’s annual convention at the Washington Hilton. Eliminating agency deference, and curbing the power of the administrative state, have long been priorities for the conservative legal movement.

“I have a toast, and the toast is, a long one, to Jarkesy, to Axon-Conchran, to Corner Post, to Loper Bright, to Relentless, and all the other wonderful cases, and to all of you. All of you who seek a revival of constitutional freedoms. Bravo,” Hamburger said.

Hamburger founded the New Civil Liberties Alliance, which brought one of the two challenges to the Chevron deference doctrine last term. The group has emerged in short order as a top Supreme Court litigator that’s steering broad challenges to agency power.

In June, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the justices overturned longstanding doctrine requiring courts to defer to an agency’s interpretation of a regulation as long as it’s reasonable. The Corner Post decision allowed litigants to challenge agency decisions long after they are issued.

Its ruling in Securities and Exchange Commission v. Jarkesy made it harder for the SEC to collect civil penalties for securities fraud. And in Axon Enterprise v. FTC and SEC v. Cochran, the high court allowed litigants to challenge agency decisions sooner in federal courts.

Some panelists, including both judges, raised their glasses. “I’ve never been asked to drink on a panel before,” Mizelle said.

Both Mizelle and Rao were appointed to the bench by President-elect Donald Trump during his first term. Mizelle was his youngest nominee, at 33 years old when confirmed.