- Several important Supreme Court decisions this term dealt with issues of executive power.
- in In two decisions, the Supreme Court expanded presidential power and limited the remaining power of the executive branch.
- While the Supreme Court has restricted the executive branch, it has empowered the judiciary, experts told BI.
The Supreme Court’s decisions this term have created a worst-case scenario in which lower courts are inundated with cases on everything from the application of regulatory laws to the scope of presidential power.
In doing so, the Court has constructed a political chessboard on which the judiciary can wrest power from the existing executive branch.
Meanwhile, some lower court judges, such as U.S. District Judge Eileen Cannon, who on Monday dismissed Donald Trump’s classified documents lawsuit, are, intentionally or not, figuring out how to help the Supreme Court systematically curtail the power of the executive branch.
The Supreme Court’s attack on executive power
The two Supreme Court decisions this term, Loper-Bright Enterprises v. Raimondo and Corner Post Co. v. Board of Governors of the Federal Reserve System, combined to set in motion a series of new cases that challenged previously established law and have been reinterpreted by a polarized Supreme Court. The Court’s conservative majority cleverly worded its decisions so that the justices retained the power to sort out the mess themselves.
In its June 28 decision, the Supreme Court overturned 40 years of precedent and struck down the Chevron doctrine. Once seen as a victory for conservative lawmakers because it upheld the Reagan Administration’s interpretation of deregulatory policies, the Chevron doctrine gave the EPA, and federal agencies more broadly, the authority to interpret vague regulatory language in laws enacted by Congress, so long as the interpretation was reasonable.
By striking down Chevron, the Supreme Court decided that the interpretation of the law governing the agency should not be left to the executive branch, limiting the power of presidential appointees to decide how the agency should be run under existing law.
“So in theory, it takes power away from unelected officials,” Justin Crow, a political science professor at Williams College who studies the Supreme Court, told Business Insider. “But where does that power go? It doesn’t exactly go to the people or to elected officials. In some ways, it may go to Congress, but it really goes to the courts and the judges, and it gives the courts and the judges the power to question agency decisions.”
Under the new rules, federal agencies would no longer have the authority to enforce regulations themselves, meaning plaintiffs could challenge regulatory rules and enforcement methods by agencies like the EPA, the Securities and Exchange Commission, and the Department of Health and Human Services, and courts could be empowered to interpret legal regulations, potentially stripping even more power from administrative agencies.
The one-two regulatory punch
The corner post was decided on July 1st and received less media attention than Roper’s decision a few days earlier. However, when combined with Roper’s results, Jonathan Entin, a former constitutional law professor at Case Western Reserve University, said the Corner Post decision “is like an invitation to those subject to government regulations to sue.”
“Roper is saying he has no respect for the agency. Courts are supposed to interpret the rules. But the Corner Post case, which challenged the Fed’s rules on card-swipe fees, could spark a lot of litigation,” said Entin, who clerked for former Supreme Court Justice Ruth Bader Ginsburg while on the U.S. Court of Appeals for the D.C. Circuit.
Corner Post Entin told BI that in this case, the Supreme Court extended the six-year statute of limitations during which plaintiffs can sue federal agency regulatory rules. The new statute of limitations is no longer based on the rule’s effective date, as lower courts had decided. Instead, the Supreme Court decided that the countdown begins from the time a plaintiff claims to have been harmed by the rule. This makes “every rule open to new challenges by anyone,” Entin said.
This means that plaintiffs can sue against rules that were enacted decades ago if they can allege they were harmed by the regulations within the past six years, just as a newly opened gas station can sue over emissions regulations that are impeding its business, giving today’s courts the opportunity to reinterpret old laws.
With corner post, Entin said that from the federal agency’s perspective, the statute of limitations established by the Supreme Court never actually expires.
“A tsunami of litigation”
In her dissent in Cornerpost, Judge Ketanji Brown Jackson noted that the Roper and Cornerpost decisions combined would set off a “tsunami of litigation” from plaintiffs unhappy with a variety of federal regulations, from the Federal Reserve’s debit card processing fees to the Environmental Protection Agency’s Clean Air Act.
These inevitable legal challenges will give the Supreme Court ample opportunity to weigh in and exercise its power in the future.
But the Supreme Court did not simply leave it to itself to interpret the regulations that federal agencies must follow.
Perhaps the most striking example is the decision of Trump v. United States Supreme Court., The Supreme Court has granted a sitting president broad immunity from prosecution for his official actions while in office. But darker elements of the Trump administration The biggest problem with this case is that it gives the judiciary the power to determine exactly what is official and protected conduct, as compared to informal, and therefore unprotected, conduct.
Trump The Supreme Court granted Trump broad immunity for some of his conduct in connection with the January 6 election interference incident and sent part of its decision back to U.S. District Judge Tanya Chutkan in Washington, D.C., to determine whether other charges against the former president are protected by “official acts” immunity or whether Trump can be prosecuted for those crimes.
If the Trump campaign further challenges Judge Chutkan’s decision, the case could be sent back to the Supreme Court for a more specific interpretation.
Similarly, Judge Cannon’s decision on Monday to dismiss the former president’s classified documents lawsuit will almost certainly be brought to the Supreme Court on appeal.
Cannon, an appointee of President Trump, found that the appointment of Special Counsel Jack Smith to indict the former president was unconstitutional because Smith, unlike other U.S. attorneys with the power to convene grand juries and impose indictments, was not confirmed to the role by Congress.
Smith was appointed to the job by Attorney General Merrick Garland, a presidential appointee. Special counsel positions have been used in major cases where Justice Department officials had potential conflicts of interest, including the Iran-Contra scandal during Ronald Reagan’s administration, Bill Clinton’s Whitewater controversy and the criminal investigation into Hunter Biden.
Justice Clarence Thomas, in his Supreme Court immunity decision this month, signaled that he believes many types of special counsel are unconstitutional. Justice Cannon’s decision came just a few weeks after Thomas’ ruling.
Other conservative justices have been less forthright about special counsels, but a future ruling banning their use would infringe on the attorney general’s office’s power to appoint special counsels and take that power away from the executive branch.
This pattern is not limited to immunity cases or cases involving corporate regulation, but is part of a trend in which the Supreme Court has dismantled executive branch powers outside the presidential purview, striking down laws and overturning lower court decisions on guns, emergency abortions and homeless sleeping arrangements.
On the July 6 episode of Slate’s Supreme Court analysis podcast, “Amicus with Dahlia Lithwick,” senior court reporter Mark Joseph Stern said the Supreme Court has expanded its power this term and “restructured our representative democracy to make it less representative and less democratic.”
And it could continue to happen no matter who’s in the White House.
“I don’t think this court is humble about its role,” Entin told the business magazine. “It’s trying to decide things that it doesn’t necessarily need to decide, and in doing so it’s encouraging other potential litigants to take bold action. Whether or not the court got these cases right, I think we’re going to see more cases raising these issues.”
