In a new essay in the Harvard Law Review’s blog, Professor Elena Chachko explores the impact of the U.S. Supreme Court’s most recent term on internationally informed agency action — the many regulations that incorporate international standards, implement U.S. international commitments, or reflect foreign policy interests.
Before the four recent decisions Chachko dubs the “anti-regulation quartet” — Loper Bright Enterprises v. Raimondo, SEC v. Jarkesy, Corner Post v. Board of Governors of the Federal Reserve System, and Ohio v. EPA — agencies had greater doctrinal leeway to consider international factors not explicitly authorized by statute than purely domestic ones. That baseline has now shifted, she argues.
It’s too soon to know exactly how much these cases will impact the international administrative state, Chachko writes, but 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,” she writes. “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.”