Today’s Ad Law Reading Room entry is “The Beleaguered Sovereign: Judicial Restraints on Public Enforcement,” by Luke P. Norris and Helen Hershkoff, which is forthcoming in the Texas Law Review. Here is the abstract:

Looking back at the federal courts over the last generation, commentators will likely focus on their role in undermining the functioning of the regulatory state. Well acknowledged in this story are Supreme Court decisions that have constrained administrative agencies under the newly-minted “major questions” doctrine barring them from devising regulations to meet contemporary problems, as well as the Court’s blockbuster decision overruling the longstanding Chevron doctrine that courts accord deference to agency expertise in the face of statutory ambiguity. The Court also has made it increasingly difficult for individuals—often workers and consumers, people of color, women, and those who live from paycheck to paycheck—to seek federal judicial redress for regulatory violations as private enforcers. And the Court has questioned whether certain private enforcement actions, even when authorized by Congress, unconstitutionally usurp Article II power. These trends have heightened the importance of certain kinds of public enforcement—statutory claims-making by government lawyers in court—of the very kind the Court’s rhetoric valorizes. Yet, as this Essay shows, there is a developing story of constraint there, as well. The Essay describes a nascent but overlooked trend of Article III courts cabining government lawyers as they seek to enforce regulatory protections. Federal courts are raising procedural and jurisdictional roadblocks in lawsuits filed by government lawyers that narrow the government’s Article III standing, the scope of its litigation interests, and its opportunities to intervene in suits, and that, at times, result in dismissal of the government’s suits. The trend is still developing and we are hesitant to prognosticate about how much public enforcement the Article III courts eventually will block. But in the instances we explore, the Executive Branch is increasingly beleaguered as it seeks to enforce various regulatory protections in the federal courts. The world of public enforcement is complex and judicial constraint is not always unjustified. However, the cutbacks we identify run counter to foundational notions of sovereignty and federalism, upend long-accepted procedural and jurisdictional practice, and threaten to further hamstring the regulatory state’s ability to deal with urgent problems.

It’s no great news that the courts are engaged in a bit of whack-a-mole with federal regulatory agencies. Loper Bright leaves agencies free to exercise policy judgment when implementing statutes using particularly open-ended statutory language? Well, just wait and see what they’ll do with the nondelegation doctrine. Norris and Hershkoff, however, have uncovered an as-yet-unappreciated front in the war over the viability of the administrative state. At the same time courts have restricted agencies’ regulatory powers and placed limits on private standing to enforce public commands, they’ve also quietly laid the groundwork for constraining the ability of government attorneys to redress violations of federal law. To their credit, Norris and Hershkoff do not overclaim. The trend they identify is still nascent, and much is uncertain. But this smart and eminently readable essay—which I would commend to all—certainly convinces that it’s an area to watch.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.