This is part of Opening Arguments, Slate's coverage of the start of the Supreme Court's final term. We're working to change the way the media covers the Supreme Court. Support our work by joining Slate Plus.
If there were any doubts about the Supreme Court's commitment to the conservative project of “deconstructing the administrative state,” this term will likely put them to rest. The court has already lined up several potential blockbuster decisions by the end of June, including two cases that could spell the end of the Chevron deference doctrine and another that could significantly limit agencies' ability to use administrative law judges in enforcement proceedings.
On Tuesday, the court's conservative supermajority will deliver another powerful blow to the administrative state when it hears oral arguments in a case called Corner Post v. Board of Governors. Despite the very real threat it poses, this case has received surprisingly little attention.
Corner Post is about a technical debate about who has the right to file lawsuits against the regulations issued by the authorities. The Administrative Procedure Act, which sets out the general framework for challenging the legal validity of a regulation, provides for a limitation period of six years from “the first time the claim arises”.
The prevailing understanding of this language—and, frankly, the obvious one—is that such claims “accrue” when the challenged rule is first enacted. But the corporate parties in Corner Post (with the support of a conservative law firm) want to jettison that objective standard. Instead, they hope to create a new, free-floating regulation that ties the start of the statute of limitations to the point at which the respective challenger first “suffers legal injustice.”
At the heart of the case is a 2011 rule enacted as part of the Dodd-Frank financial reform law that sets maximum “swipe fees” that banks can charge for the use of their debit cards. The rule survived an initial challenge when it was upheld by the D.C. Circuit Court of Appeals in 2015. Apparently unhappy with this outcome, two trade associations representing convenience stores and gas stations wanted a second bite at the apple and so filed this case in 2021: a decade after the rule was first issued.
The Federal Reserve, the agency that issued the rule, moved to dismiss this second lawsuit because it was barred by the APA's statute of limitations. Notably, the trade associations responded by adding a single gas station called Corner Post as a co-plaintiff. The turn? Corner Post first opened for business in 2018. At that point, the store's claims against the rule were “growing,” the trade associations said, meaning the statute of limitations was still open for them.
These facts make clear that this new interpretation of the APA's statute of limitations is a recipe for exactly the kind of legal uncertainty that conservatives supposedly hate. Any rule – no matter how old – would potentially be subject to a non-stop conveyor belt of litigation. An opponent of a particular rule would simply have to find a relatively new company that would be subject to the rule's requirements. Better yet, they might even create fictitious new “companies” just to file lawsuits. In many cases, this strategic behavior would complement the blatant forum shopping that corporate interests and conservative lawyers already engage in.
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What little attention Corner Post has received so far has focused more on its potential to add to the chaos that would ensue if the Court adopted the Chevron doctrine in the pending cases Loper Bright v. Raimondo and Relentless v. Department of Commerce -reverence would override. The end of Chevron deference alone could reopen hundreds of previous cases resolved using this doctrine. If the court in the Corner Post case also adopted the professional associations' new formula for calculating the statute of limitations under the APA, this would further fuel the flood of legal disputes. This new loophole in the statute of limitations would allow the industry to look further into the past and reopen an even larger universe of old Chevron veneration cases.
Importantly, however, the significance of Corner Post extends far beyond the traditional Chevron cases that challenge the legal authority for certain regulations. It would also allow corporate interests to reignite disputes over the underlying political reasons for old regulations they oppose – commonly called “arbitrary and capricious” claims. Lawyers from the creative industries and the conservative movement would have a huge legal target to target in challenging existing regulations.
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In fact, it is this far-reaching review that has conservative opponents of the administrative state most excited about the prospects of victory in Corner Post. Currently, they have already developed effective strategies to block the flow of future regulations. For example, the campaign to end deference to Chevron is an important part of this broader plan (although, as noted above, it would also have some retroactive effects). The conservative legal movement is betting that risk-averse agencies will respond to the increasing threat of judicial doubt about their decision-making by significantly scaling back the ambition of their future rules—or perhaps even abandoning some of their more far-reaching rulemaking altogether.
What has not yet been realized despite Chevron's demise is their vision of abolishing the existing set of regulations. One of the key lessons of the Trump administration is that phasing them out through the standard rulemaking process is slow, resource-intensive and legally burdensome. Instead, they have found that it is far more efficient to use the wrecking ball of litigation to tear down the existing regulatory structure. Corner Post's promise is a wrecking ball with far greater reach.
By the end of the current legislative session, the Supreme Court could give regulated industries and conservative lawyers powerful weapons to dismantle America's regulatory past while throttling our regulatory future. This one-two punch against the administrative state would decimate a crucial part of our constitutional democracy while putting tens of millions of Americans at unacceptable risk of harm from pollution, workplace injuries, dangerous products, and more.