Executive power and judicial challenge in the USA: how the Supreme Court’s recent historic rulings restraining Biden’s Presidency may now become a restriction on Trump

Richard J Lazarus | 02 December 2024

The restoration of Donald Trump for a second term in the White House has suddenly placed in a new light two recent rulings by the U.S. Supreme Court in the past two plus years that progressives have denounced for undercutting the ability of the federal government’s executive branch to address critically important and compelling policy matters such as climate change. In both cases, the more conservative justices were all in the majority and the more progressive Justices all dissented.

In the first case, West Virginia v. EPA, decided in June 2022, the Court rejected the legality of a rule issued by the U.S. Environmental Protection Agency that dramatically reduced emissions of greenhouse gases by coal-fired power plants. The Court concluded that the text of the Clean Air Act fell short of providing the “clear congressional authorization” necessary to support a rule of such widespread political and economic significance.  In the second case, decided this past June, the Court in Loper Bright Enterprises v. Raimondo, struck down a federal agency regulation that sought to enforce restrictions on commercial fishing for conservation purposes. While that particular regulation lacked the policy significance of the climate rule invalidated in West Virginia, the Court’s reasoning in Loper Bright included a radical overruling of a forty-year-old Supreme Court ruling that had long been the bedrock of the modern administrative state’s capacity to act effectively in face of changing challenges in the United States. 

In Chevron, Inc. v. Natural Resources Defense Council Inc., the Court in 1984 ruled that the plain meaning of statutory language determined the scope of lawmaking authority that Congress had conferred on a federal agency charged with administering that law. However, in cases where that statutory language was not plain, but instead ambiguous, the federal courts would defer to that agency’s own interpretation of the scope of its authority to act, so long as that interpretation was reasonable. In other words, the agency’s interpretation need not be the best or the one a court might prefer. In Loper Bright, the Court turned Chevron on its head, concluding that a court should uphold the agency’s reading of the law only if it was supported by the statute’s clear meaning. Otherwise, the agency was entitled to no deference at all – meaning that its actions or proposed actions could be deemed unlawful because they were not covered by a strict reading of the words of an Act that might be decades old. Accordingly, what had been the exception from judicial deference to agency interpretation — clear statutory language — became the only instance when the agency’s interpretation would prevail.

The practical impact of the West Virginia and Loper Bright rulings on the ability of the executive branch of the U.S. government to address pressing policy matters is enormous. For instance, the U.S.’s environmental protection laws have been enormously successful over the past half century. They have significantly reduced air, water and land pollution across the country while the nation’s economy has grown exponentially. No less important, they have prevented the kind of environmental devastation and public health disasters that have occurred in other nations, including many in Eastern Europe, Southeast Asia, and Africa, lacking specific laws to address each of these problems in bespoke ways.

That success has depended, however, on a working partnership among the federal legislative and executive branches, in effect devolving to federal agencies the authority to act on the general intentions of legislation passed by congress.   Both West Virginia Bright and Loper Bright are now unraveling that partnership.  The ambitious pollution control laws that Congress enacted in the 1970s and 1980s included broad, capacious statutory language delegating executive branch agencies like EPA the authority to establish restrictions on industry pollution that reflected the complexities presented by evolving environmental science, a changing national economy, and constant technological innovation. Congress deliberately chose to delegate lawmaking authority to expert agencies in appreciation of Congress’s own inability to anticipate and address all those complexities on a real-time basis.

Congress also knew that it always retained the authority either to override, build upon or statutorily codify agency rulemaking, all of which repeatedly it did during the 1970s and 1980s. That iterative process between Congress, the executive branch and the courts in environmental lawmaking worked exceedingly well until partisan gridlock in the early 1990s effectively shut down congressional environmental lawmaking. The last times Congress significantly amended the landmark U.S. air, water, and hazardous waste pollution controls were 1990, 1987, and 1984, respectively. As a result, federal executive branch agencies have been forced over the past thirty years to work with increasingly aging congressional statutory text. And the application of that text to modern problems has invariably become more ambiguous over time.

For that same reason, however, the portent of the West Virginia and Loper Bright rulings is potentially devastating to the executive branch’s ability to address issues like climate change. The Court has effectively ruled that executive branch authority requires congressional enactment of language that provides clear congressional authorization. But congressional paralysis still prevails, including in the upcoming Republican-controlled Congress due to the filibuster available to the Democratic minority in the Senate, which means the odds of such congressional authorization in time to address important issues like climate change, seems vanishingly slim.  

But herein lies the latest rub.  With President Biden in the White House, the Court’s reduction of executive branch authority was something conservatives celebrated and progressives condemned. Will, however, those roles reverse now that Trump will soon be back in the White House? No doubt, progressives will champion in litigation the rulings of West Virginia and Loper Bright to try to defeat in court the new administration’s efforts to cut back on existing public health and welfare regulatory protections. And they may well be successful. But such short term successes could be at the cost of entrenching judicial precedent that deprives the executive branch of the authority it may need, upon the future return to the White House of a progressive President, to then address many of the nation’s most compelling problems. 

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About the author

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Richard J. Lazarus is the Charles Stebbins Fairchild Professor of Law at Harvard Law School and recently served as a Beaufort Visiting Fellow at St. John’s College, University of Cambridge, for the Michaelmas Term 2024. Professor Lazarus has presented oral argument to the Supreme Court in 14 cases and is the author of The Rule of Five: Making Climate History at the Supreme Court (Belknap Press 2020) and  The Making of Environmental Law (2d. ed., Harv. Univ. Press 2023).