We heard that concern from Justice Elena Kagan as to the possible impacts of restrospective relief should they rule that restrospective relief is available to the Collins Plaintiffs, for example, does that mean that 17 million decisions made by the Social Security Administration could be challenged? David Thompson reassured Justice Kagan that the 3?yr Statute of Limitations, standing, and other Judicial limitations would prevent most of that, however, Thompson agreed with the general proposition that yes they should be challengeable.
A much easier and cleaner solution would be for the SCOTUS to decide that the nws is ultra vires (i.e., unlawful) and therefore void under the APA Claim. If they choose that route, they don't have to get into all of the Severability Analysis stuff, which is a little shady if you believe that the founding fathers only wanted the Legislative Branch to write, modify, and rewrite the laws and for the Judicial Branch to decide about their validity...
We'll see what happens!
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