The Roberts Court Record on Executive Power is Mostly Lose-Lose

A little over two years ago, in Loper Bright Enterprises v. Raimondo, the Supreme Court jettisoned the Chevron doctrine requiring judicial deference to reasonable administrative agency interpretations of unclear statutes they are charged with enforcing. Because the gears of academic publications turn much more slowly than those of the blogosphere, my article explaining why a key postulate of Loper Bright is wrong has only now been published. I won't claim it was worth the wait, but I do hope that readers will find something worthwhile in it.

The paper is titled Deference and the Rule of Law. It's currently available as something called FirstView via Cambridge University Press here. The final version (which will not be subject to any further editing) will appear in the Canadian Journal of Law & Jurisprudence, so if you're reading this blog post in the future and the foregoing link doesn't work. you might need to go to the journal's website. Also, if you're reading this post in the future, congratulations on finding a working time machine; just don't travel back to the present and create a universe-destroying paradox, or maybe take your chances and do!

But I digress.

The paper is in a Canadian journal because it was originally a lecture I delivered last year in London, Ontario at Western University's Faculty of Law in response to an invitation extended in 2024. I accepted the invitation and planned the lecture when Loper Bright was still fresh on my mind. The lecture/paper is pretty short, so I refer readers to it and will give only a very short summary, followed by an update based on the most recent Supreme Court mischief regarding the president and administrative agencies.

The paper takes as its challenge the suggestion by Chief Justice Roberts’s majority opinion (and the assertion in a concurrence) that the Chevron doctrine was inconsistent with Marbury v. Madison's famous statement that "it is emphatically the province and duty of the judicial department to say what the law is." That suggestion, I contend, is wrong on two grounds.

First, elaborating on an argument that was first articulated by Henry Hart to defend a pre-Chevron version of deference, I explain (and include a couple of nifty graphics that help explain) how one can conceptualize the role of the courts in granting deference as saying what the law is by saying where the bounds of agency discretion lie. (This argument has greater difficulty accounting for the post-Chevron case of Brand X, although, as I argued on the blog in 2020, even Brand X can be reconciled with the Hart account.)

Second, and more originally, I argue that deference to the judgment of other actors is perfectly consistent with the rule of law--and indeed often required by it. When courts deny habeas petitions or civil rights claims because the petitioners or claimants have failed to show that their rights were clearly violated, they are in effect deferring to other legal actors' views of the law. More broadly, whenever a court accepts the judgment of the legislature in a statute or the judgment of the People in a constitutional provision, it is subordinating its own all-things-considered judgment about sound policy to the views of others. It is deferring.

I delivered the lecture roughly ten weeks into the second Trump administration. By that point, it was already clear that, lawless as the first Trump administration was, the second would be far worse. I thus concluded my lecture by asking whether Loper Bright might not be beneficial in the short run, as it could be thought to reduce the number of cases in which the Trump administration would receive deference. I ventured that it would not be very beneficial in that way because the core problem with the Trump administration is not that it exercises delegated discretion reasonably but unwisely; the core problem is that it simply breaks the law and abuses power.

Nothing that has occurred since I delivered the lecture changes that conclusion. However, I heard an interesting view at the Practicing Law Institute Supreme Court Review conference last week that arguably challenges it. One of the other faculty for the day was the Honorable Harris Hartz of the U.S. Court of Appeals for the Tenth Circuit. In response to some characterizations of the Roberts Court as empowering the executive branch, Judge Hartz offered a competing view: the Court is giving the president greater control over the executive branch but is not expanding executive branch power and is in some respects shrinking it.

There are indeed some cases that fit that paradigm: Trump v. Slaughter gave the president greater control over officials exercising executive power, while both Loper Bright and cases applying the major questions doctrine constrain agency power and thus executive power. Judge Hartz pointed to these cases. However, there are other lines of cases that do indicate expanded presidential power.

For example, in Trump v. Hawaii in 2018 and in Mullin v. Doe this year, the Court indulged the wildly implausible assumption that Trump's immigration policy was not motivated by animus: against Muslims in 2018 in the Travel Ban case and against Black Haitians in this year's Temporary Protected Status revocation case. By ignoring clear evidence of constitutionally illicit motives, the Roberts Court empowers the Trump administration to act on such motives. So far we've seen that happen in cases involving religious and racial animus, but it is not difficult to imagine the Roberts Court employing similar faux-naïveté in other cases that might reach it--such as those involving the Trump administration's pretextual targeting of critics for criminal prosecution or funding cuts. Should the Roberts Court say in those cases that it must once again disregard clear evidence of illicit motive, that too will empower the executive branch, at least when led by a lawless, venal, and vindictive would-be autocrat.

Or consider the sweeping immunity to criminal prosecution the Roberts Court recognized in Trump v. United States. By removing almost every disincentive for abusing power, the ruling effectively grants the president and thus the executive branch additional power.

Indeed, Trump v. United States arguably does more than that. The Court's discussion of "conclusive and preclusive" presidential power appears to establish presidential powers that the president cannot be legitimately constrained in exercising; the case does not merely say these are powers the president can get away with abusing. Thus, in future cases, the decision could be cited as authority for limiting statutory constraints on presidential action. That's another latent expansion of presidential power.

Finally, although I agree with Judge Hartz that on its face Slaughter is about presidential control of the executive rather than the scope of executive power, in effect, consolidation of control in the president means more executive power.  Some independent agencies are expressly bipartisan, requiring equal numbers of Republicans and Democrats. Others are effectively bipartisan because of long terms and for-cause removal protection. Diversely populated independent agencies cannot act as swiftly as centrally controlled ones, so the latter have more power. Meanwhile, Trump fired Inspectors General without providing the statutorily required 30 day notice and argues in litigation that even that modest procedural limit is invalid. IGs are an internal check on executive power. Here too, greater presidential control of the sort granted in Slaughter means fewer constraints and thus more power.

Accordingly, cases decided since my lecture heighten my concern that the current president will abuse his power. Meanwhile, Loper Bright and the major questions doctrine may serve a conservative Court in blocking a future enlightened presidential administration committed to using regulatory agencies to advance the common good. Taken together, and with limited exceptions, the Roberts Court precedents empower malign presidents who abuse their authority and disempower presidents who would exercise authority in the belief that government can take actions to improve people's lives.