Brookings Institution Commentary Considers Loper Impact on New Administration

The Brookings Institution published a commentary piece from Frank J. Thompson, Distinguished Professor of Public Affairs Emeritus & Faculty Director at Rutgers University, arguing that “[t]he Supreme Court’s overturning of the Chevron doctrine may unintentionally weaken Trump’s ability to govern unilaterally by empowering lower courts—often selected through strategic forum shopping by his opponents—to more freely block his executive actions.”

This article explores factors that will probably lead the Supreme Court’s reversal of Chevron to have a modest negative effect on the ability of Trump’s unilateral presidency to achieve its goals. Historically, the doctrine has galvanized some deference to the executive, primarily at the district and appellate court levels. The Supreme Court had abandoned obeisance to the doctrine more informally prior to Trump’s first term. Chevron’s reversal opens the door to the greater influence of the courts in shaping public policy. It elevates the potential importance of a judge’s partisan policy preferences in rendering decisions. As a result, forum shopping by opponents of the administration could become more strategic, and the administration’s success rate in lower courts may decline. But the impact of any such development on the Trump unilateral presidency will decline sharply if the Supreme Court curtails the use of nationwide injunctions by the lower courts.