Limiting The Executive Branch’s Power To Act Unilaterally Is a Feature, Not a Bug, of Loper Bright Cutting Across Party Lines 

A recent Brookings article, titled “Will the Supreme Court’s Chevron decision undercut Trump’s unilateral presidency?,” suggests that “overturning of the Chevron doctrine may unintentionally weaken [President] 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.” That somewhat misunderstands the intent and meaning of Loper Bright overruling Chevron. 

Loper Bright is about principle and process—how public policy choices should be made and by whom: the Executive Branch going it alone or Congress through duly enacted legislation? The whole point of repudiating Chevron’s fiction that statutory ambiguity or silence transferred to the Executive Branch power to make policy choices announced in legislative rules with the same force as statutes is to put that power back where the Constitution put it, vesting all legislative power in Congress, subject to constitutional limits on federal power.  

It’s Good to Limit Unilateral Executive Branch Action 

Limiting the Executive Branch’s ability to unilaterally make policy choices that the Constitution reserves for Congress is a feature, not a bug. That holds equally true for unilateral actions taken by unelected bureaucrats housed in a warren of administrative bodies and those directed or taken by the President—of any party. And that is a good thing regardless of whether one holds conservative or liberal views or thinks wise public policy. The rule of law and the Administrative Procedure Act (not to mention the Constitution) requires that this holds true across administrations, regardless of which political party holds power. That is what Loper Bright is about, and its core teaching—federal statutes “have a single, best meaning,” which “is fixed at the time of enactment,” that both agencies and courts must follow—thus has no policy or partisan valence.  

History teaches why this is important  

As James Madison famously wrote in Federalist No. 47, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” To guard against this danger and protect liberty, our Constitution wisely separated these different kinds of government power in three branches of government. The Constitution exclusively tasks the Legislative Branch (Congress) with making laws; the Executive Branch (the President, with the assistance of subordinates) with faithfully executing federal law; and the Judiciary (the Supreme Court and lower) with neutrally and independently interpreting the law. The Constitution does not grant legislative or judicial powers to the Executive Branch. It tasks the democratically elected, politically accountable branches (Congress and the president) with resolving difficult and important policy questions through the deliberately arduous legislative process. The Constitution further requires that before becoming law, legislation must win votes in both chambers of Congress and be signed by the president. And as creatures of statute, federal agencies have no powers except for those Congress has constitutionally conferred on them. 

Chevron Doctrine Undermined Separation of Powers 

The Chevron doctrine stood in tension with these principles, not to mention the APA, which requires that courts independently “decide all relevant questions of law.” In effect, Chevron not only transferred to the Executive Branch Congress’s legislative power but also federal courts’ authority to call balls and strikes and neutrally say what the law is. As then-Judge Kavanaugh observed in 2016 in an influential law review article, when the Chevron doctrine was alive and well, it “encourage[d] the Executive Branch (whichever party controls it) to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.” This doctrine “invite[d] an extremely aggressive executive branch philosophy of pushing the legal envelope[.]” There were many other real-world and rule of law problems with this regime. Loper Bright ended this dangerous fiction, holding that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.”  

Anyone who supports constitutionally limited government and the rule of law—regardless of party—should celebrate that holding, which is politically neutral and has no policy valence. Sometimes faithful application of Loper Bright will support the Trump Administration’s actions, as AFPF has previously argued. There are, of course, cases where Loper Bright will cut the other way. But that would be true of any administration, to one degree or another. Again, Loper Bright is not a results-oriented decision; it’s about process and agnostic on policy outcomes. And Loper Bright says nothing about the President’s separate inherent powers. 

The Job of Lower Court Judges after Loper 

The Brookings article also suggests that “[i]n the absence of Chevron’s ‘disciplining effect’ on the decisions of lower court judges, the policy preferences of” judges adjudicating challenges to Executive Branch actions “will likely become more important.” But a faithful reading of Loper Bright does not authorize federal judges to decide cases based on their policy preferences or supposed ideology. Loper Bright specifically instructed courts on what they must do to “stay out of discretionary policymaking left to the political branches” when interpreting statutes. Loper Bright tasks judges with neutrally finding a statute’s single best meaning using standard tools of statutory interpretation. And in cases where a statute is best read to confer discretion on an agency, the court’s job is to independently fix the scope of that delegation of discretion and determine whether that delegation is constitutional, and so long as an agency stays within those boundaries uphold the agency’s decision, if otherwise legal.