Raimondo Moved Us to a Corner Post of Uncertainty

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Dwight Vick
November 4, 2024

In my last PA Times installment, I wrote about the ramifications of Loper Bright Enterprises v. Raimondo on MPA programs. The Supreme Court’s 6-3 ruling upended 40 years of precedence established in the Chevron case which deferred a bureaucracy’s reasonable interpretation of an ambiguous statue under the Administrative Procedures Act (APA). The Supreme Court did not overturn 18,000 administrative decisions made since the 1980s. The ruling reduced the executive branch’s power to oversee these agencies and their rulings. Congress must clarify legislative uncertainties that exist in a bureaucracy’s policies impacting the organizations that oversee them. In short, the judicial branch regained its power by claiming they alone must exercise independent judgment in deciding if an agency acted within its statutory authority. Furthermore, the courts may not defer to an agency’s interpretation of the law. With that, MPA programs may need to reconsider offering and/ or administrative law courses to better prepare future public sector employees to navigate uncertain times that could last for decades.

Four days later came Corner Post. In my mind, it rocked our world.

When I was an MPA student at the University of Memphis, administrative law was a highly recommended, if not required, course. I learned two things that helped in my doctoral studies at Arizona State University and as a college professor who regularly teaches public policy; 1) Do not be intimidated by the law; and 2) Court rulings provide boundaries or reinforce how agencies act. Loper v. Raimondo removed one of those boundaries. Corner Post helps solidify Raimondo.

Corner Post is a truck stop in North Dakota that opened in 2018. The owners opposed a maximum fee paid by merchants for each debit card transaction, a policy established in 2011 by the Federal Reserve Board (FRB). The truck stop owners argued in their 2021 suit the ceiling exceeded the regulation established by the Dodd-Frank Act.  Since the business opened after the six-year period ended and the policy was firmly established, the FRB argued the case was untimely because it fell outside of the six-year limitation window. Most, but not all, lower court rulings agreed with the FRB. The limitations period does not begin when a plaintiff is injured by agency action regardless of the date of publication.

The Supreme Court upended this precedence in its ruling on the Corner Stop case by stating any newly created organization that was established after the six-year limitation has expired and considered bureaucratic policy can, in short, sue the bureaucratic agency because the entity was created after policy is established, even if the organization opened after the policy is considered legitimate.

Raimondo and Corner Stop opens litigation. Raimondo undermines an agency’s ability to interpret and apply the law under APA. The executive branch’s power is undermined. The legislative branch must clarify these policies in legislation. These decisions are to be made by members of Congress who are not familiar with every aspect of any agency or issue. Otherwise, bureaucracies are left in limbo to act and prepare for any judicial action that could be taken by judges who may or may not be familiar with the issue at hand. Corner Stop allows any organization to question any ruling that must be heard by a judge, who as in any case, needs to be familiar with the situation to rule. 

One may ask, “Why shouldn’t someone challenge such things?” I agree. We live in a democracy and voices must be heard at the ballot box, a city council or Congressional hearing, or a court of law. 

I rebut with these questions: “Chevron and the APA allowed experts in these specific fields, experts we train in our MPA programs, to make these decisions. How can a judge, a member of Congress or a president who cannot be familiar with the details of all policies that impact their districts, states and the nation establish detailed policies they may know broadly but not specifically without input from the bureaucrat or agency that oversees them?” 

In some ways, these two laws empower the bureaucrat because their expertise can be considered.  Officials may rely upon us even more to clarify law and policy in practice. However, our expert opinions and decisions can be dismissed by a court. Our MPA students’ careers are or will be established in these areas that are impacted by these joint rulings: health care, law enforcement, environmental regulation, real estate, education, financial services, energy, transportation, telecommunications, employment, consumer protection, tax offices, even gaming. Could agency heads direct their employees, our students and alumni, to “do nothing,” or “do something” at the risk of facing legal challenges? Remember too that each state has its own version of APA. These rulings impact these model state and local laws. Our students are much more likely to work or find employment with state and local governments. 

So, what do we do now? What are our options, as practitioners and professors, in this post Raimondo and Corner Stop world? I can only imagine the “cussing and dis-cussing” that will occur in faculty meetings, dean’s councils, agency department meetings as well as authors and publishers over this issue.  Here are our options as I see them: 1) offer administrative law in our programs; 2) place a stronger focus on judicial administration in our Introduction to Public Administration courses; and 3) work with our institution’s Continuing Education department and offer administrative law certifications to practitioners.  I look forward to your input.

But I know one thing we cannot do in this new administrative world: nothing.

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Author: A graduate of Arizona State University, Dr. Dwight Vick has been as ASPA member for 30 years.  He is an instructor with Texas A&M International University and Thomas Edison State University as well as works with Texas area high schools teaching government, economics, political science, and English.

 

 

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