I was listening to the oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System today, and I was struck by the following exchange (from the transcript):
JUSTICE JACKSON: If I understand you correctly, each new company that is created in an industry can suddenly bring a challenge that might risk or undermine valid –invalidation of the entire basis of the industry, each new company, because you say each new company that’s created can bring such a lawsuit. Now, whether or not it will succeed, I understand, but aren’t you risking destabilization of the industry in this way?
MR. WEIR: We don’t think so. We—we think the experience in the Sixth Circuit is what you’ll see. There –there was no uptick in challenges to old regulations in the Sixth Circuit, and we would have seen them there in the last —
JUSTICE JACKSON: Is —is that possible because we had other doctrines that prevented, so, you know, for example, Chevron existed and so there were lots of things that already –you know, right? Like, there are reasons why you might not have an uptick. I’m just wondering, in a world in which you could bring these actions, why wouldn’t you have this problem?
MR. WEIR: Well, I –I think that because most regulations are –are valid, there’s –there’s no argument that they’re unlawful. So you would –so you wouldn’t see them. It’s only the ones that have defects that you’re going to see challenges to or potential defects.
Was this a suggestion that Chevron will no longer exist after this term? I suppose we will know by July.
UPDATE: I should have listened to the second-half of the argument before posting. Had I done so, I would have noted this question from Justice Kagan:
JUSTICE KAGAN: Mr. –Mr. Snyder, I want to emphasize that I’m asking you a hypothetical question. It’s an “if” question. There is obviously another big challenge to the way courts review agency action before this Court. Has the –has the Justice Department and the agencies considered whether there is any interaction between these two challenges? And, again, you know, if Chevron were reinforced, were affirmed. If Chevron were reversed, how does that affect what you’re talking about here?
Does this question make it more or less likely that Justice Jackson inadvertently disclosed Chevron’s fate? Was Justice Kagan just being precise? Or was she covering for her colleague’s gaffe? Again, time will tell.
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