The Supreme Court vs. the executive branch

The Supreme Court vs. the executive branch

When they write the history books about this era of the Supreme Court, its decimation of presidents' regulatory powers will loom just as large as any other issue.

Why it matters: Every modern president leans heavily on executive actions to advance their agenda, and Democrats in particular use federal agencies for climate, health and tech regulation. Those days are numbered.

Between the lines: These rulings aren't always the ones that grab the public's attention.

• But the consequences are forever, and they touch just about every executive action of any significance that any future president will ever attempt.

Catch up quick: In a 6-3 decision, the court yesterday overturned the doctrine known as "Chevron deference."

• When Congress writes laws, it directs agencies in the executive branch to implement those laws. And the regulations those agencies write are often challenged in court.
• Chevron held that, when the courts are dealing with one of those disputes, and when the underlying law is vague or unclear about what the relevant agency should do, the courts will defer to the agency's interpretation, as long as it's reasonable.

Chevron had been dead for a while at the Supreme Court. For the past several years, in cases where Chevron might have applied, the justices have simply done their own analysis rather than deferring to regulatory agencies.

• But it was alive in lower courts. Formally overturning the doctrine means that the federal government will no longer get the benefit of the doubt at any stage of a lawsuit — which will almost certainly lead to more lawsuits, and more regulations being struck down.

Threat level: Expect to see more aggressive legal challenges to decisions from the EPA, the FDA and tech regulators, including the Federal Communications Commission and the Federal Trade Commission.

Zoom out: Overturning Chevron is just one facet of the court's steady campaign against executive-branch power.

• The 6-3 court has also struck down several major Biden initiatives by invoking the "major questions doctrine" — which holds, in short, that if an executive agency is going to do something really big, it needs to have explicit authority from Congress.
• The court held, for example, that OSHA could not justify a vaccine mandate in workplaces by pointing to laws in which Congress told OSHA to generally look out for workplace safety. The vaccine mandate was too "major" to rely on a general grant of authority.

The bottom line: The court will use the major questions doctrine to kill the most ambitious things presidents try to do on their own. The end of Chevron will mean that the courts second-guess nitty-gritty regulatory decisions more often.

• All of this applies to the whole government, all the time — and that will dramatically curtail every president's ability to try to solve problems on their own.

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