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Donald Trump has expressed grand designs of ruling like an autocrat in his second term but, to some extent, he also wants to follow policies more typical of a Republican administration — namely deregulation of the environment, labor and commerce for favored industries.
But there’s a potential obstacle to Trump getting his way on this in the courts, wrote former Obama administration aide Cass Sunstein for The Washington Post — and ironically, that obstacle was put in place by Supreme Court justices he appointed.
Specifically, he said, Trump will be the first president in 40 years to enter office without the case law of Chevron U.S.A. v. Natural Resources Defense Council, which compels judges to defer to executive branch officials’ interpretation of the law. A right-wing majority of the Supreme Court, including Trump’s three appointees, overruled this decision in Loper Bright Enterprises v. Raimondo this year.
To some extent, Chevron had already been moribund under previous administrations, as it was easy for plaintiffs to forum-shop for ideological judges who would overrule executive officials on even highly settled subject matter expertise, as lower courts did in a recent abortion drug case. But now it’s officially gone, and with it any pretense that judges must defer to agency interpretations of law.
The bitter irony for Trump, noted Sunstein, is that it was conservative judges, led by the late Justice Antonin Scalia in the 1980s, who wrote Chevron in the first place, to protect then-President Ronald Reagan’s administration from lower-court judicial scrutiny.
At the time, he wrote, conservatives “saw the doctrine as a way of liberating the executive branch, and the president personally, from undue judicial control,” giving GOP appointees “more room to maneuver and could reflect the president’s policy preferences. Serious criticisms of Chevron came from liberals and progressives, who argued that it jeopardized the rule of law.”
But by the 2010s, after years of Democratic domination of executive branch agencies and Republican dominance of the courts, the politics were reversed for conservatives: “Chevron came to be taken as the symbol of an out-of-control administrative state seizing on ambiguous laws to impose expensive and sometimes outlandish regulations, threatening liberty in the process.”
“But what goes around comes around,” Sunstein wrote. The effects of overturning Chevron, insofar as they are, could come down first on Trump’s actions to reshape the federal government in his own image. “In Trump’s first term, his administration lost a lot of cases in court, which meant that some of his priority initiatives — including significant changes in immigration and clean air rules — fell by the wayside,” Sunstein concluded. “And because of a long-sought triumph of the conservative movement, he will begin his new presidency without the benefit of Chevron. His lawyers are going to have their work cut out for them.”
