Rulemaking and judicial review will be among topics explored at the American Bar Association 2024 Administrative Law Spring Conference to be held in person May 10 at the Royal Sonesta Capitol Hill in Washington, D.C.  

Highlights include:

“The Promise, Perils and Future of Policymaking Through Enforcement” — In recent years, regulated parties have sounded the alarm about agencies’ use of enforcement actions to make policy instead of or in addition to relying on legislative rules. Others have defended the legitimacy of policymaking through enforcement based on its inevitability, practical merits and fidelity to rule of law values in particular contexts. This panel will focus on pharmaceutical regulation, immigration and tax.

“The Future of Administrative Adjudication after SEC v. Jarkesy” — In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of administrative adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the court agrees with the 5th Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. This panel will explore what the implications may be if the Supreme Court were to find agency adjudication unconstitutional in Jarkesy or future cases.

“The Major Questions Doctrine: Doctrinal Conundrums and Practice Implications” — The major questions doctrine (MQD) has taken the administrative law world by storm, but substantial questions remain about justifications for the doctrine, limits on its scope and applicability, its implementation in the lower courts, its effects on agencies and its implications for the private bar and regulated clients. This panel brings together a group of leading academics and practitioners for a discussion oriented toward the practical implications of the new MQD.

“The Congressional Review Act: The Law No One Knew About is Now All that Anyone Talks About” — The Congressional Review Act (CRA), enacted in 1996, requires submission of final rules to Congress and the U.S. Government Accountability Office. The CRA provides an expedited procedure by which a simple majority of Congress can pass a joint resolution of disapproval that, if signed by the president, makes it as though the rule never took effect and prevents the issuing agency from promulgating the same or a substantially similar rule unless Congress authorizes the agency to do so. Between 1996 and 2017, the law was used one time to disapprove a rule. Since 2017, the law has been used to disapprove more than 20 rules, and numerous joint resolutions of disapproval have been considered in one or both houses of Congress. This panel will look at the legal mechanisms established by the CRA, examine how and why the use of the CRA disapproval process has increased in recent times, the scope of rules subject to potential disapproval under the CRA and whether the CRA might or should be amended going forward.