The Structural Constitution vs. the Administrative State: Removal, Delegation, Adjudication, and Deference After Trump v. Slaughter and Learning Resources v. Trump

Elbert Lin, Partner and Co-Chair, Issues and Appeals Practice | Hunton Andrews Kurth LLP

Elbert Lin is a Partner in the Richmond and Washington, DC offices of Hunton Andrews Kurth LLP and Co-Chair of the firm’s national Issues and Appeals practice. A former Solicitor General of West Virginia and a former law clerk to Justice Clarence Thomas, he has led precedentsetting appellate cases across the country on the major questions of constitutional and administrative law at both the federal and state levels, and has argued more than 70 cases in state and federal appellate courts, including the Supreme Court of the United States and several en banc courts of appeals. He is best known as the architect of the state-led challenge to the Clean Power Plan that produced the Supreme Court’s first-ever stay of an agency rule pending review in West Virginia v. EPA (2016) — a ruling The Washington Post described as the Court’s sharpest rebuke of a sitting President since the Truman administration — and he returned to the Court in West Virginia v. EPA (2022), the case that cemented the major questions doctrine. Chambers USA clients have repeatedly described him as one of the best appellate lawyers in the country, a strong oral advocate, and a highly persuasive and effective strategist.

• Education & Credentials

Mr. Lin earned his J.D. from Yale Law School, where he served as Managing Editor of The Yale Law Journal, and his B.A., magna cum laude with Distinction in the Major, from Yale University, where he was elected to Tau Beta Pi. He clerked for Justice Clarence Thomas of the Supreme Court of the United States, for Judge William H. Pryor Jr. of the U.S. Court of Appeals for the Eleventh Circuit, and for Senior Judge Robert E. Keeton of the U.S. District Court for the District of Massachusetts. He is admitted to practice in the District of Columbia, Massachusetts, Virginia, and West Virginia, and before the Supreme Court of the United States; the U.S. Courts of Appeals for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, District of Columbia, and Federal Circuits; and the U.S. District Courts for the District of Columbia, the District of Massachusetts, the Eastern and Western Districts of Virginia, and the Northern and Southern Districts of West Virginia.

• Recognition & Leadership

Mr. Lin was appointed Solicitor General of West Virginia in 2013 and served for four and a half years as part of the Attorney General’s senior management team, overseeing all civil and criminal appeals, supervising the office’s federal litigation, authoring more than 25 briefs in the Supreme Court of the United States, and issuing more than 45 formal Attorney General Opinions. He is a Fellow of the American Academy of Appellate Lawyers (elected 2020) and an elected member of the American Law Institute (2018). He has been ranked by Chambers USA as a leader in both Appellate Litigation and Commercial Litigation in Virginia every year since 2021; named The Best Lawyers in America “Lawyer of the Year” for Appellate Practice (2025) and listed for Appellate Practice (2024–2027); recognized by Benchmark Litigation as a Litigation Star (2022–2027) and shortlisted for both Appellate Litigator of the Year and Constitutional Law Litigator of the Year at the 2026 Benchmark US Awards; recommended by The Legal 500 United States (2026); named a National Law Journal Litigation Trailblazer (2019); and selected for Super Lawyers in Appellate Law (2022–2026), Virginia Business Legal Elite (2020–2025), and Virginia Lawyers Weekly’s “Go To Lawyers” for appellate practice (2023). He is a Senior Fellow of the Administrative Conference of the United States (2025–present), having previously served as a Public Member (2020–2025), and sits on the Board of Advisors of the New Civil Liberties Alliance.

• Professional Involvement

Mr. Lin has served on the Executive Committee of The Federalist Society’s Federalism and Separation of Powers Practice Group since 2013 and previously on the Executive Committee of its Telecommunications and Electronic Media Practice Group (2011–2013). He has testified before Congress and is a sought-after speaker on constitutional law, administrative law, environmental law, state-federal relations, the Supreme Court, and appellate practice, having addressed the national conventions of the American Bar Association, the Association of Corporate Counsel, the National Asian Pacific American Bar Association, The Federalist Society, Americans for Prosperity, and the American Legislative Exchange Council. His recent programs go directly to the themes of this webinar: the ACUS panel “Recent Administrative Law Developments in the Supreme Court: What’s Next for Agencies? — Loper Bright v. Raimondo” (2024); the ABA Litigation Section program “Judicial Review of Agency Action: Potential Expansion or Contraction of the Judicial Role” (2024); The Federalist Society’s National Lawyers Convention panel “Render Law Unto Congress and Execution Unto the Executive” (2022); the American Bankers Association’s “The Supreme Court and Regulatory Power” (2023); The Federalist Society’s “Courthouse Steps” programs on Trump v. CASA (2025); and the firm’s “SCOTUS October 2025 Term in Review” (July 2026). His scholarship and commentary include “At the Front of the Train: Justice Thomas Reexamines the Administrative State” in the Yale Law Journal Forum, “States Suing the Federal Government: Protecting Liberty or Playing Politics?” in the University of Richmond Law Review, “Can Courts ‘Vacate’ Administrative Action Under the APA?” in The Journal of Federal Agency Action (2024), “Kavanaugh Comment May Spur Crop of Nondelegation Cases” in Law360, “Major Questions Remain About the Major Questions Doctrine” (2026), “Five Quick Takes on West Virginia v. EPA” (2022), and his analysis of the Supreme Court’s 2024 decision limiting the SEC’s use of in-house administrative proceedings. He has been quoted on the Court and the administrative state by The New York Times, The Wall Street Journal, CNN, Bloomberg, Reuters, The Hill, and Law360, and is a member of the John Marshall Inn of Court.

• Experience

Mr. Lin’s work spans every pillar of the structural Constitution. On delegation and the limits of agency power, he argued West Virginia v. EPA before the en banc D.C. Circuit on behalf of 27 States challenging the Clean Power Plan (2016), was lead counsel for 29 States and agencies in obtaining the Supreme Court’s unprecedented stay of that rule, served as intervenor defending the rule’s repeal under the major questions doctrine in West Virginia v. EPA (2022), and — as a Department of Justice trial attorney — argued in National Family Planning & Reproductive Health Ass’n v. Gonzales (D.D.C. 2005) over claims that a federal statute was an unconstitutional delegation to an executive agency. On separation of powers, he argued for the State in WV DHHR v. E.H. (W. Va. 2015) that a judicial order mandating executive-branch pay raises violated the separation of powers. On judicial review and deference, he obtained the D.C. Circuit’s ruling that the FCC’s first net-neutrality order was unlawful in Comcast Corp. v. FCC (2010); defended agency action in Conference Group v. FCC (D.C. Cir. 2013) and Globalstar v. FCC (D.C. Cir. 2009); obtained reversal of a federal biological opinion as arbitrary and capricious in Dow AgroSciences v. NMFS (4th Cir. 2013); and secured nationwide stays of EPA’s “Waters of the United States” rules for 18 States in In re EPA (6th Cir. 2015) and for the business community in Kentucky Chamber of Commerce v. EPA (6th Cir. 2023), as well as a stay of EPA’s rejection of Missouri’s ozone plan in Union Electric Co. v. EPA (8th Cir. 2023). In the Supreme Court of the United States, he was amicus counsel in Sackett v. EPA (2023), where the Court adopted the Clean Water Act interpretation he advanced; obtained certiorari and vacatur in County of Maui v. Hawaii Wildlife Fund (2020); won a stay of a nationwide injunction in U.S. Army Corps of Engineers v. Northern Plains Resource Council (2020); and served as lead counsel for multistate amicus coalitions in Christie v. NCAA (five States), Ross v. Blake (22 States), U.S. Army Corps of Engineers v. Hawkes (23 States), Franchise Tax Board v. Hyatt (44 States), and Reed v. Town of Gilbert (10 States). His amicus brief in NYSRPA v. Bruen (2022) was cited in a concurring opinion. Earlier in his career he was a partner in the appellate and communications litigation groups of a national law firm and a Trial Attorney in the Federal Programs Branch of the Department of Justice’s Civil Division, where he received a Special Service Award. Few practitioners have spent more time litigating — and winning — the questions of who may exercise federal power, under what constraints, and subject to what judicial check, making Mr. Lin uniquely positioned to map the post–Trump v. Slaughter and post–Learning Resources landscape for removal, delegation, adjudication, and deference.

Erika Maley, Partner and Co-Chair, Issues and Appeals Practice | Hunton Andrews Kurth LLP

Erika Maley is a Partner in the Washington, DC office of Hunton Andrews Kurth LLP and Co-Chair of the firm’s national Issues and Appeals practice. A former Solicitor General of Virginia, she is an experienced appellate and trial-level litigator who has argued dozens of cases in federal and state courts — including a prevailing argument before the Supreme Court of the United States — and whose practice sits squarely at the intersection of constitutional law, statutory interpretation, and justiciability. She has spent her career on both sides of the structuralconstitution debate: as a Department of Justice trial attorney defending federal agency action, as a state Solicitor General defending the Commonwealth’s laws and prerogatives against federal and private challengers, and as private appellate counsel challenging agency rules under the Administrative Procedure Act and the First Amendment. Her practice today spans administrativeprocedure litigation, environmental and energy matters, First Amendment and free-speech disputes, federal preemption, products liability, personal jurisdiction, and sovereign immunity before the Supreme Court, the federal courts of appeals, the Supreme Court of Virginia, and the federal district courts.

• Education & Credentials

Ms. Maley earned her J.D. from Stanford Law School, where she was elected to the Order of the Coif and served on the Articles Committee of the Stanford Law Review, and her B.A., summa cum laude, from Duke University. Following law school she clerked for Justice Stephen G. Breyer of the Supreme Court of the United States and for Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. She is admitted to practice in the District of Columbia and Virginia and before the Supreme Court of the United States; the U.S. Courts of Appeals for the District of Columbia, Federal, Second, Fourth, Fifth, and Ninth Circuits; and the U.S. District Courts for the District of Columbia and the Eastern and Western Districts of Virginia.

• Recognition & Leadership

Ms. Maley served as Solicitor General of Virginia, the Commonwealth’s chief appellate officer, where she personally briefed and argued the Commonwealth’s most consequential cases in the Supreme Court of the United States, the Fourth Circuit, and the Supreme Court of Virginia. In October 2025 she joined Hunton Andrews Kurth as Co-Chair of the firm’s Issues and Appeals practice — an appointment covered by Bloomberg Law, Law360, and Law.com — and in 2026 she was recommended by The Legal 500 United States for Dispute Resolution: General Commercial Disputes. Her Supreme Court victory in Lackey v. Stinnie (2025), which she briefed and argued, established that a plaintiff who obtains only a preliminary injunction is not a “prevailing party” entitled to attorney’s fees under 42 U.S.C. § 1988 — a ruling with nationwide consequences for constitutional litigation against government defendants. She is a Barrister of the Edward Coke Appellate Inn of Court and a member of The Federalist Society.

• Professional Involvement

Ms. Maley is a frequent faculty member on Supreme Court and administrative-law programming for the bar. She presented the firm’s Court & Counsel CLE webinar “SCOTUS October 2025 Term in Review” (July 2026) — the Term that produced Trump v. Slaughter and Learning Resources v. Trump — and “Navigating Emerging Administrative, Regulatory, and Government Trends in 2026” (February 2026). Her recent writing includes “Constitutional challenges to state sustainability laws gain traction” in Recycling Today (September 2026) and analysis in Hunton’s The Nickel Report on the federal injunction against California’s Truth in Recycling Law (July 2026). Before entering government service she spent a decade in the appellate practice of a national law firm, focusing on constitutional and statutory issues, and earlier served as a Trial Attorney in the Federal Programs Branch of the U.S. Department of Justice’s Civil Division — the office charged with defending federal statutes, executive action, and agency rulemaking against constitutional and APA challenges.

• Experience

Ms. Maley’s docket reads like a syllabus on judicial review of government action. Challenging agency rules, she obtained the D.C. Circuit’s ruling in National Association of Manufacturers v. SEC (2015) that the SEC’s “conflict minerals” disclosure rule violated the First Amendment; briefed and argued BP Energy Co. v. FERC (D.C. Cir. 2016), securing a remand of a FERC undue-discrimination ruling; won a preliminary injunction in Life Sciences Ass’n v. CMS (N.D. Cal. 2020) against the “Most Favored Nation” drug-pricing rule; and prevailed in Validus Reinsurance v. United States (D.C. Cir. 2015) on the reach of a federal excise-tax statute. Defending government action as Virginia’s Solicitor General, she briefed and argued Sierra Club v. State Water Control Board (4th Cir. 2023), upholding a Clean Water Act permit for the Mountain Valley Pipeline; Courthouse News Service v. Smith (4th Cir. 2025), Hawkins v. Youngkin (4th Cir. 2025), Lumumba v. Kiser (4th Cir. 2024), and Bhattacharya v. Murray (4th Cir. 2024), each rejecting First Amendment challenges to state law or official action; and Virginia Hemp v. Virginia (4th Cir. 2025), defeating a federalpreemption challenge to Virginia’s cannabis-product statute. She also secured dismissal of “public trust” claims seeking to compel federal greenhouse-gas regulation in Alec L. v. Jackson (D.D.C. 2012, aff’d D.C. Cir. 2014) and of “jus publicum” claims against Virginia’s energy and environmental laws for lack of standing in Layla H. v. Commonwealth (Va. Ct. App. 2024). In the Supreme Court of the United States, beyond Lackey v. Stinnie, she obtained reversal of the Federal Circuit in Life Technologies v. Promega (2017), summary reversal of the Third Circuit in Taylor v. Barkes (2015), and a favorable habeas ruling in Jennings v. Stephens (2015). Having defended federal agencies from inside the Department of Justice, defended a State’s structural prerogatives as its Solicitor General, and dismantled agency rules as private counsel, Ms. Maley brings a rare three-dimensional perspective to how removal, delegation, adjudication, and deference doctrines actually play out in litigation after Trump v. Slaughter and Learning Resources v. Trump.

SESSION 1 – The Term That Rewired Agency Power: Presidential Removal, Major Questions, Nondelegation, and the Jury-Trial Right | Erika Maley & Elbert Lin | 12:00pm – 1:00pm

This session covers the doctrinal shifts of the 2025–26 Term and the cases already set for decision in the coming one. It examines what at-will removal of commissioners means for enforcement at the FTC, NLRB, SEC, FERC, and CPSC and for adjudications now pending before them; how a plurality used the major questions doctrine—and a concurrence used ordinary textualism—to invalidate $166 billion in tariffs; what survived of the nondelegation challenge in FCC v. Consumers’ Research; and how far Jarkesy reaches once the Court decides FCC v. AT&T, Verizon v. FCC, and Department of Labor v. Sun Valley Orchards.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Litigating Against the Agency in 2026: Forum, Standing, Timing, Deference, and Remedies | Erika Maley & Elbert Lin | 1:10pm – 2:10pm

This session turns doctrine into a playbook. It addresses how to get a structural challenge into district court under Axon, who may seek Hobbs Act review after NRC v. Texas, when a facial APA claim accrues under Corner Post, and what Diamond Alternative Energy means for standing. It then measures what Loper Bright and Skidmore actually weigh in the circuits two years on, how McLaughlin Chiropractic lets defendants reopen agency interpretations in enforcement and private litigation, and how to secure meaningful relief after Trump v. CASA. It closes with the state dimension—state attorneys general as plaintiffs, intervenors, and defenders—from the perspective of two former state Solicitors General.