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September 26, 2022

Better Markets Issues Report on Supreme Court’s 2022-2023 Term, Focusing on the Court’s Views on Financial Regulation and the Structure of the Administrative State

Abortion, gun control, the First Amendment—Supreme Court decisions on these sorts of social-policy topics consumed much of the nation’s attention last term. But that term was also momentous for financial regulation and Americans’ economic lives, even if these topics saw fewer headlines.  As we discuss in our just-released report, the consequences of recent decisions will stretch from Americans’ retirement accounts to their options for suing employers or financial advisers.  All the while, a stronger conservative majority is now ascendant on the Court, and it has turned its gaze towards the deepest foundations of modern rules to protect consumers, investors, and the real economy.

We illustrate the impact of last term by reviewing several key cases related to financial regulation.  The Court, for instance, reaffirmed the duty of retirement plan administrators to act in the interests of their beneficiaries, and it secured new pathways for individual investors, employees, and consumers to contest mandatory arbitration.  We then look ahead to some cases in the Court’s upcoming term that will further shape financial life in this country; the next term will decide whether those who violate the securities laws can seek to bog down SEC enforcement in federal court, whether or when state governments will continue to play leading roles in anti-regulatory challenges, and to what degree the Bank Secrecy Act will continue to serve as a viable deterrent against hidden foreign accounts.  We also look ahead to cases on many of the same topics that the Court might take up for later terms.

Finally, our Report steps back to take a wider view of trends in administrative law—the legal structure behind not only financial regulation but federal regulation generally.  Thanks to a recent decision in West Virginia v. EPA, the Court has now canonized a new doctrine tilting the field against agency rules addressing “major questions.”  We examine the tenuous rationales behind West Virginia and the troubling implications of this new doctrine.  That doctrine, however, is only one prong of the conservative majority’s wider assault on modern administrative law.  As we point out, signs from other cases portend waning appreciation for agencies’ technical expertise and a growing confidence to place ever more power in the hands of the Court.  We even highlight how the Court might return to legal doctrines not seen since battles over the New Deal and how such trends point to erosion of even Congress’ power relative to the Court.  Each of these deep structural trends will shape the environment for current and future financial regulation to protect individuals and the Main Street economy.



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