I honestly can’t believe the Supreme Court has to decide the case of Corner Post v. Federal Reserve, argued earlier this week.

In 2011, the Federal Reserve Board published a regulation concerning the fees that Visa and MasterCard can charge to merchants for debit card transactions. In 2018, Corner Post Inc., a North Dakota truck stop, started doing business and claimed to be harmed by the regulation. They joined a lawsuit claiming that the regulation, as written, was “arbitrary and capricious” and other violations of the Administrative Procedure Act.

The Board moved to dismiss Corner Post as a party to the lawsuit because they did not file suit within the six-year federal statute of limitations to challenge regulations under the APA. Corner Post replied that it could not have filed within six years because it did not exist within those six years.

Whose Government Is It, Anyway?

True, the statute of limitations says suit must be brought within six years of when “the cause of action first accrues,” and the APA says that a person has a right of action if they are “suffering a legal wrong” or “adversely affected or aggrieved” by the regulation. Corner Post argues that they couldn’t “suffer a legal wrong” or be “adversely affected or aggrieved” before they even existed.

True, but utter nonsense in this context. Statutes of limitations exist not just as a helpful alarm system to remind plaintiffs to file their lawsuits. Fundamentally, they exist so that the legal system can function for all of us without being endlessly threatened by litigation. If Corner Post’s reading were correct, no regulation would ever be free from facial challenges, because some 5-year-old party could always claim to be “adversely affected or aggrieved.”

Facial v. As-Applied Challenges

Administrative Law students should notice an important factor in this lawsuit: Corner Post did not claim that the Board had brought an enforcement action against it directly. If it had, Corner Post might have a good argument that it had a right to review for up to six years as a person “suffering a legal wrong” under Section 702 of the APA.

But note that the right in that hypothetical case wouldn’t accrue within six years of Corner Post’s formation, but within six years of the date of the Board’s enforcement action against them. That provides a meaningful limitation on timing of lawsuits: The Board can expect APA challenges to regulations as applied to a particular respondent in a particular enforcement action for up to six years after that enforcement action. There are only so many enforcement actions, and the Board can calculate its own willingness to open the regulation up to challenge when it decides whether to enforce.

But Corner Post didn’t bring an “as applied” challenge, because the Board hadn’t applied the regulation against it. Instead, Corner Post argued that the regulation itself was facially invalid as to all parties. Allowing such facial challenges by any new entity for the first six years of those parties’ existence — even where no action is taken against them by regulators — opens the barn doors on endless litigation against any regulation since the beginning of time, forever. Just by the magical (and, in some cases, no doubt, pretextual) creation of a new entity, the public can never have any confidence that they can treat a regulation as final in making their life and business decisions. With statutes of limitations like that, who needs enemies?

The Court’s Questions and the End of Chevron

Justices Jackson and Kagan raised precisely this point with Corner Post’s counsel at oral argument. Counsel replied that the Sixth Circuit had adopted the within-six-years-of-creation rule and no flood of lawsuits had resulted.

Both justices asked whether the judicial deference doctrine of Chevron had helped to keep such lawsuits in check. What if Chevron deference were reduced or eliminated, they asked?

The media has mostly noted these questions in covering Corner Post v. Federal Reserve. Maybe the justices already see the writing on the wall and foresee an end to Chevron when the Court decides Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the cases challenging the deference doctrine, later this term.

Maybe. Also, yawn. Anyone who listened to the oral argument in those cases knows that Chevron is in trouble. You don’t have to be in the robing room to guess that. Neither Justice Jackson nor Justice Kagan tipped the hand of the Court as to how the obvious majority hostility to Chevron will sort out.

I just hope the Court isn’t taking Corner Post’s argument seriously. (If they are, does anyone have a kindergartener I can borrow? I want to challenge some ancient federal regulations.)