Two terms ago, the Supreme Court delivered the Major Questions Quartet. This term produced what commentators widely view as the Anti-Regulation Quartet. The Supreme Court delivered four decisions that, taken together, will likely make life much harder for regulators. The Anti-Regulation Quartet has triggered intense debate and analysis. One important area that has not received much attention, however, is internationally informed agency action. International engagement is widespread in agency practice through implementation of international agreements, adoption of soft law regulatory standards, harmonization of regulations with foreign countries, incorporation of general foreign policy objectives in regulation and more. Internationally informed agency action raises a distinctive set of doctrinal complications left unaddressed by the Court.
In Loper Bright Enterprises v. Raimondo, the Court overruled Chevron’s formulation of deference to agency interpretations of statutes. In SEC v. Jarkesy, the Court held that the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against them, possibly deflating a powerful SEC enforcement tool. In the somewhat less publicized case of Corner Post v. Board of Governors of the Federal Reserve System, the Court opened a path for litigants newly injured by final agency action to challenge it regardless of the APA’s six-year statute of limitations. The implication is that even older, settled regulations could now face new legal challenges. And in Ohio v. EPA, the Court indicated that courts should apply more exacting standards than the current status quo in reviewing how agencies respond to comments in notice and comment rulemaking.
In what follows, I highlight the unique features of internationally informed regulation and outline preliminary thoughts about the potential implications of the Court’s decisions. One key implication is that a host of internationally informed regulations that don’t fit within the Court’s idea of foreign affairs and national security actions have been made much more vulnerable by the Anti-Regulation Quartet. Clear-cut foreign affairs and national security actions are unlikely to be significantly affected. But internationally informed agency actions outside a vaguely defined foreign affairs and national security core are now at greater risk — at least as a matter of doctrine.
Internationally informed regulation also encapsulates and highlights the tension between the Court’s staunch constitutional presidentialism and its deep skepticism of the administrative state. That tension complicates predictions on how the Court might assess internationally informed regulations in the future. Internationally informed regulation is intertwined with the President’s foreign affairs powers, and yet it is unlikely to benefit from the Court’s deference to the President in that area.
The International Administrative State
Agencies regulate all the time in ways that implement international treaties and agreements, incorporate international standards, rely on the work of foreign regulators, or further certain foreign policy and national security objectives to advance the President’s agenda. Executive Order 13,609, issued in 2012 by President Obama and still in force, instructs agencies to promote international regulatory cooperation and work to harmonize U.S. and international standards. And multiple statutes delegate to agencies the obligation to respect the international commitments of the United States in executing their mandates, as well as the power to account for the international landscape in their actions. Internationally informed agency actions govern what we eat, the medications we use, how we interact with technology, how our financial institutions operate, the aircraft we fly, the cars we drive, the air we breathe, and much, much more.
In the past year, Kathleen Claussen, David Zaring, and I have worked with the Administrative Conference of the United States to better understand how agencies engage in international regulatory cooperation. We have interviewed many current and former officials. Our preliminary findings reaffirm the pervasiveness of international engagement in the administrative state across different agencies and on matters large and small.
I have argued that administrative law doctrine as it stood before the Supreme Court’s 2022 decision in West Virginia v. EPA gave agencies greater leeway and discretion to regulate when their actions have some international nexus compared to when their actions are purely domestic. The traditional Chevron-State Farm structure allowed agencies to consider any policy-relevant factor not explicitly prohibited by statute, including a variety of international factors. And agency discretion under that baseline was augmented by a host of foreign relations law doctrines. The doctrines include foreign affairs deference, the Charming Betsy canon, which requires judges to interpret statutes to the extent possible to conform with U.S. international law obligations, and doctrines related to the President’s power to form and interpret international commitments.
What is more, the APA itself has exceptions for foreign affairs and military functions, as well as matters “committed to agency discretion by law.” The courts have tended to apply the latter particularly in the national security space. The APA also does not apply to the President, who is often involved in some fashion when agency action touches on foreign affairs.
Several elements of this legal framework have now been destabilized, with the result that internationally informed agency action could potentially be at greater risk even compared to the domestic baseline. This would be a significant departure from the pre-Quartet status quo. The future of internationally informed regulations will depend on how courts exercise their now exclusive power to definitively interpret statutes for the administrative state, and whether they extend respect for the President’s authority in foreign affairs to internationally informed regulations outside the core of foreign affairs and national security action. There are causes for concern on both counts for those who would like to preserve agency leeway to engage with the international environment.
Internationally Informed Regulations in the New Landscape
The 40-year-old Chevron doctrine had already been on life support by the time Loper Bright officially declared its death. Chief Justice Roberts’ majority opinion describes at length “the byzantine set of preconditions and exceptions” to Chevron, leading some courts to “simply bypass[] Chevron, saying it makes no difference for one reason or another.” The Supreme Court has not deferred to an agency interpretation under Chevron since 2016. “At this point,” Chief Justice Roberts bluntly remarked, “all that remains of Chevron is a decaying husk with bold pretensions.”
Instead, many courts have applied something a lot closer to Skidmore deference, which gives persuasive weight to agency interpretations but leaves the final word to the Court. Many therefore expect that Loper Bright will change little in judicial practice. It simply made explicit the approach that courts — certainly the Supreme Court — have been implementing anyway. Deference is a fact of life, and it isn’t going away with or without Chevron. As Adrian Vermeule put it, “[t]he long arc of the law has bent steadily toward deference.” Even by its own terms, the majority opinion left room for deference to agency interpretations when a statute’s meaning is that an agency is “authorized to exercise a degree of discretion.”
Yet even if Loper Bright itself will not change much in practice, and some significant amount of deference is unavoidable, it is hard to ignore the cumulative effect of the Supreme Court’s administrative law decisions in the last three years. There will be a period of realignment. And agency action will very likely be chilled for a while. The Supreme Court has made regulation more costly (Jarkesy, Ohio), more vulnerable to litigation (Corner Post), and entirely foreclosed if the question is “major” absent explicit statutory authorization (West Virginia). Loper Bright decisively gives the courts the final word in interpreting the scope of agency authority. What would this mean for internationally informed regulation?
Kristen Eichensehr anticipates that foreign affairs and national security agency action will be relatively shielded from the effects of Loper Bright and the other recent Supreme Court decisions. The courts tend to afford agencies increased foreign affairs and national security deference separate and apart from Chevron. That deference is grounded in functional considerations like the executive’s institutional advantage where it comes to fact-intensive, fast-developing, and sometimes confidential matters that involve international diplomacy. (Many commentators have rightly questioned the courts’ belief that those things are unique to foreign affairs). Foreign affairs deference also follows from the President’s elevated role in foreign relations under Article II of the Constitution. It is an instance of courts’ broader foreign affairs exceptionalism — the idea that foreign affairs and national security are special areas that deserve special judicial treatment.
Foreign affairs deference appears to have survived this Court’s realignment of administrative law doctrine in the last few terms. In Biden v. Texas, decided the same year as West Virginia v. EPA, the Supreme Court let stand the Biden Administration’s decision to rescind President Trump’s Remain in Mexico plan based in large part on foreign affairs deference. Chief Justice Roberts concluded that potential harm to relations with Mexico warranted that deference. Foreign Affairs exceptionalism was also on display in Justice Gorsuch’s dissent in Gundy v. United States, among other places. While advocating for a robust constitutional nondelegation doctrine that would prohibit Congress from delegating lawmaking power to agencies, Justice Gorsuch indicated that broad delegations of authority to the President in foreign affairs should continue to be tolerated. This, according to Justice Gorsuch, is because the President has independent constitutional power in that area that does not derive from Congress.
I second Eichensehr’s prediction that clear-cut instances of national security and foreign relations agency action will likely be shielded from the Anti-Regulation Quartet. What constitutes foreign affairs and national security matters deserving of special treatment has been and should be debated, but the case law gives us an idea of a core set of matters that courts have traditionally labeled this way. Agency decisions to withhold security clearances, impose sanctions on foreign actors, or target a foreign terrorism suspect with lethal force fall into this category under existing case law. Yet many — perhaps most — internationally informed agency actions are not such clear-cut exercises of foreign affairs and national security powers. Scores of internationally informed regulations on safety, health, the environment, technology, transportation, finance and more resemble domestic agency action in that they create rules and standards to regulate the domestic private sector.
To illustrate this point, in West Virginia v. EPA — the case that officially launched the major questions doctrine in its new version — the Supreme Court invalidated the Clean Power Plan, an ambitious piece of domestic environmental regulation. But the Plan also happened to be a key implementation instrument the Obama administration relied on to meet U.S. obligations under the landmark Paris Climate Agreement. Not a word was said in the West Virginia majority opinion about the crucial international context of what otherwise looked like any other domestic regulation.
In the eyes of the Court, then, a host of internationally informed actions further away from the core of what judges tend to associate with foreign affairs and national security could be categorized as “domestic” instead of being flagged for exceptional treatment as foreign affairs matters. They would therefore be vulnerable to higher risk of judicial review and invalidation in the new doctrinal landscape in a number of ways.
Under Loper Bright, courts now assert an exclusive power to definitively interpret statutes. Doctrine no longer requires them to defer to reasonable agency interpretations of ambiguous statutes to allow consideration of international factors such as international soft law standards, international agreements, and even foreign policy reasons. Considering this, Loper Bright might not bode well for regulations that rely on ambiguous congressional delegations or no delegations at all to implement international law, standards and agreements. The decision alters the preexisting default rule that agencies are allowed to consider any policy-relevant international factor not explicitly prohibited by statute. And a judiciary increasingly skeptical of both agency power and international law is more likely to find that the best reading of an ambiguous statute prohibits an agency from considering an international factor.
I have argued that the Supreme Court has generally been hostile to direct incorporation of international law in U.S. domestic law absent explicit statutory authorization. The Supreme Court’s foreign relations law cases in this vein address enforceability of international law in U.S. courts, not by administrative agencies. But I suspect the Court will be extremely skeptical of agency readings of vague statutes to permit or require the incorporation of international standards in domestic regulations. Although we do not know how significant the effect of Loper Bright on deference will be in practice, I’d wager that Loper Bright’s explicit grant of exclusive interpretation power to the courts will be felt particularly strongly in this area.
A 2007 Supreme Court case that was until now an outlier on the scope of agency power to consider international factors illustrates what a post-Loper Bright world could look like in this context. In Massachusetts v. EPA, the Supreme Court barred President George W. Bush’s EPA from relying on foreign policy considerations related to international climate negotiations to decline to regulate greenhouse gas emissions domestically. Perhaps ironically, Justice Scalia asserted in dissent that the Court should have deferred to the agency’s view under Chevron (if it did, the EPA’s de-regulatory stance would have been upheld). 2007 Justice Scalia believed that “[t]he reasons the EPA gave are surely considerations executive agencies regularly take into account (and ought to take into account) when deciding whether to consider entering a new field: the impact such entry would have on other Executive Branch programs and on foreign policy.” Massachusetts v. EPA was a peculiar case because the agency sought to defend its decision not to regulate. But in most cases, denying an agency’s discretion to consider international factors will have a de-regulatory effect.
Even in cases in which statutes explicitly authorize or require agencies to consider and implement international factors, agencies should expect more searching review of how they engage with international factors during the regulatory process, how they respond to related comments, and how they weigh international factors against domestic ones. One lingering big question which the Court has yet to resolve is whether an agency decision to implement an international agreement or incorporate an international standard is by definition “a major question” requiring clear statutory authorization.
Internationally Informed Regulations and the Presidency
The Supreme Court is openly hostile to the administrative state. But it is also profoundly presidentialist. Cases like Seila Law v. Consumer Financial Protection Bureau have cemented the President’s control over the executive branch through the power of appointment and removal. This term, Trump v. United States expanded presidential immunity from prosecution for official acts. And even as the Court narrowed the ambit of agency action, it has continued to give elevated deference to the President’s interpretation of the scope of national security delegations in cases like Trump v. Hawaii.
In the removal cases, the Court has made the argument that the President is the most democratically accountable official in government because he is elected by the people. But when the Court reviews agency action clearly sanctioned and endorsed by the President, he is suddenly erased, as Jodi Short and Jed Shugerman aptly put it. We are left only with unaccountable bureaucrats who must be constrained. Consider President Obama and the Clean Power Plan, or President Biden and his student debt forgiveness plan. The President’s prominent role in formulating and enacting those policies did not factor into the Court’s decision to invalidate them on major questions grounds.
Internationally informed regulation is an area in which the tension between the Court’s presidentialism and its skepticism of the administrative state is acutely present. It is fairly easy to predict that agency action that executes core, traditional presidential foreign policy and national security directives will continue to benefit from the Court’s enduring presidentialism. But what about the vast universe of internationally informed regulations advocated and endorsed by the President that fall outside this category? What makes the Clean Power Plan’s direct nexus to the Paris Climate Agreement different than agency action to impose sanctions on Russia, which similarly entails heavy burdens on American individuals, firms, and the financial sector? How deep should the President-agency link be in the formation of internationally informed regulation for the latter to benefit from the respect courts afford the foreign affairs President?
The tension in the Court’s jurisprudence here motivates hard questions about the normative desirability and conceptual foundations of foreign affairs exceptionalism, the validity of assumptions about presidential administration, and the perils of further bolstering executive power. At the same time, it holds promise for those seeking to entrench internationally informed regulation in the face of a judicial onslaught on agency power. Agencies can highlight the role of the President in formulating internationally informed regulation. They can draw on the Court’s own assertions about the foreign affairs presidency and the President’s democratic accountability to argue that the President’s involvement imbues that regulation with independent constitutional and democratic justification. I am not too optimistic that such arguments would work. But they might force the Court to at least confront the tension between its presidentialism and anti-administrative tendencies and bring some clarity to a doctrinal landscape in flux.
Conclusion
It is too early to know exactly what the effects of the Supreme Court’s last term on the international administrative state will be. Most of what the administrative state does — including international regulatory cooperation — happens and stays outside the courts. It will take time for agencies to internalize the Court’s opinions and implement them.
That said, internationally informed regulation motivates a unique set of doctrinal and constitutional questions that require careful analysis. What is clear is that the Supreme Court has destabilized the legal framework that governs this area in ways that create more space for anti-internationalist positions from both judges and litigants, separate and apart from the effect the recent cases will have on agencies writ large. A key factor that will shape the development of the law in this area moving forward is how the Court will balance its idea of a powerful foreign affairs presidency with its skepticism of the administrative state. In past cases like Massachusetts v. EPA and West Virginia v. EPA, skepticism of the administration prevailed.
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