How the Supreme Court rewrote the presidency
Add Axios as your preferred source to
see more of our stories on Google.
Illustration: Natalie Peeples/Axios
Whoever wins in November, they'll have a nearly impossible time pursuing much of a domestic policy agenda through executive actions — tools that nearly every president has utilized to get around congressional opposition or respond to emergencies.
Why it matters: The Supreme Court, in its most recent term, rewrote the rules of the presidency. Presidents, now immune from prosecution for acts that involve their official powers, are personally more powerful than ever before. But as policymakers, they're now much weaker.
- The court has firmly and repeatedly curtailed the power of the federal agencies that are tasked with carrying out presidents' policy positions, and has also reined in independent agencies like bank regulators.
- The major levers of domestic policymaking now rest almost exclusively with Congress — or, increasingly, with the Supreme Court itself.
Where it stands: The court's ruling striking down the doctrine known as "Chevron deference" will have immediate and lasting impacts across every policy area.
- In the near term, the death of Chevron could doom any number of major environmental regulations, including new limits on power plants and auto emissions, per Axios' Ben Geman.
- Health care regulations — from technical regulations governing public health to ambitious policies designed to boost health workers' pay — are also on the chopping block, Axios' Victoria Knight reported.
- Most importantly, it will be exceptionally difficult for future administrations to make new policy unless Congress passes new laws.
Case in point: Somewhere down the road, Congress will have to make a lot of decisions about how various industries can use AI.
- But Congress does not have a strong track record of moving with perfect clarity to neatly address new technologies, particularly as the technology itself changes over time.
- That means much will be left to the interpretation of federal regulators — hundreds of little decisions that, taken together, will define the government's overall approach to regulating AI.
Between the lines: A lot of agencies' interpretive work is just a good-faith, driven-by-necessity effort to make clunky laws work in the real world.
- At times, though, as Chevron's critics argued, agencies get creative and expansive in their interpretations to make room for new policies.
- Chevron gave the regulators a wide berth when the underlying laws were ambiguous. If the agency's interpretation was reasonable, it usually got the benefit of the doubt.
- Now, though, the courts will decide all of those disputes themselves, rather than generally assuming that regulatory agencies are the experts.
And it's not just Chevron. The conservative Supreme Court has clipped the executive branch's wings in other, sometimes bigger, ways.
- The court invoked the "major questions doctrine" to strike down the Biden administration's COVID-era eviction moratorium and workplace vaccine mandates. It ruled, in short, that the executive branch cannot do "major" things without explicit congressional approval.
- In separate decisions this term, it also curbed the powers of independent agencies, like the SEC, that aren't as closely bound to any particular president's agenda.
Put it all together, and the upshot is clear: The executive branch of government is simply not allowed to make as much domestic policy as it had been.
- The next big thing a president wants to do without Congress might be too big for the court to permit it. And the little things will be much easier for industry groups to challenge in court.
The intrigue: In the court's ruling on presidential immunity, Chief Justice John Roberts wrote that presidents must be free from the threat of criminal charges for their official duties because otherwise the president would be unable to "boldly and fearlessly carry out his duties."
- When an exercise of presidential policymaking is particularly bold or fearless, though, the court often finds that it was illegal.
