Regulatory Review: Legislative Supremacy
TL/DR –
President Trump’s recent executive orders suggest a drift towards presidential primacy in policymaking, a move that has drawn criticism and skepticism from the Supreme Court. The U.S. Constitution gives Congress the power to legislate, but Trump appears to view his policies as overriding legal restrictions, except where they collide with clear statutory mandates. The Supreme Court has emphasized the role of Congress in policymaking and has expressed concern over excessive executive discretion potentially destabilizing the rule of law, especially in cases of vast economic and political significance, resulting in laws often bearing the support only of the party currently in power.
Trump’s Executive Orders and Congressional Policymaking Authority
President Trump’s recent executive orders are challenging the US Congress’s legislative authority, shifting the balance of policymaking power. Despite the Supreme Court reinforcing Congress’s primary policymaking role, Trump’s actions hint at a perceived presidential primacy in this arena.
In his concurring opinion in West Virginia v. EPA, Justice Gorsuch voiced concerns about the risks of excessive executive discretion, among them the potential instability due to laws changing with every new administration. He emphasized the importance of legislative rules for societal governance, a view that Trump seemingly dismisses.
President Trump’s actions suggest he believes his policies can supplant legal restrictions, as evidenced in his recent executive orders. For instance, the funding freezes reflect his belief in presidential primacy in policymaking, implementing reviews to ensure consistency with Administration policy.
Moreover, the President’s recent executive orders include new funding conditions, such as eliminating school funding for certain doctrines or practices “to the maximum extent consistent with applicable law.” This phrasing indicates a view of the President as the primary source of policy, with law only coming into play as a last resort.
President Trump’s decisions, like the lengthy freeze on enforcement of the Foreign Corrupt Practices Act, or new regulations impacting environmental impact statements, demonstrate a trend of prioritizing administrative discretion over statutory restrictions.
These decisions contrast with the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine, emphasizing the role of Congress in relation to the executive branch. The decision highlights two situations where an agency’s interpretation of a statute is considered: when there’s a delegation of authority to the agency and when there is no explicit or implied discretionary authority.
The Court’s conservatives unanimously joined the Court’s decisions in Loper Bright and West Virginia, stressing the importance of congressional primacy. Despite this, President Trump’s actions suggest a differing interpretation of the balance between executive and legislative powers.
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