Originally published in the Yale Journal on Regulation
Previously, we explained how the Supreme Court, in Bondi v. VanDerStok, appeared to endorse an impossibly deferential standard of review in cases involving claims that regulatory agencies have acted contrary to, or in excess, of their statutory authority. In that post, we observed that the Court’s turn to super-deference in VanDerStok cannot be reconciled with its abandonment of the Chevron doctrine only months before in Loper Bright. Regardless of whether the Court had fully thought through its decision, we predicted that the government would start pressing for VanDerStok deference.
In this post, we explain how our prediction fared. Long story short: we were right. Government lawyers indeed are trying to expand the applicability of the VanDerStok framework.
But first, the backstory. VanDerStok involved pre-enforcement review of a 2022 rule from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which expanded the agency’s regulatory reach to include homemade firearm kits. Because the operative statute does not provide for review, the plaintiffs brought their lawsuit in a federal district court, using the Administrative Procedure Act’s cause of action and waiver of sovereign immunity. The challengers argued the ATF rule should be “set aside” under APA § 706(2)(A) (“not in accordance with law”) and § 706(2)(C) (“in excess of statutory … authority”).
The VanDerStock case is indistinguishable from other pre-enforcement APA suits alleging that the agency exceeded its statutory authority. Yet rather than treating the case as a garden-variety APA suit—as had the lower courts—the VanDerStok Court applied so-called “facial” review.