The Supreme Court is sending some mixed signals about executive power

In a ruling on June 28, the court overturned 40 years of precedent and rolled back the Chevron doctrine. Once considered a victory among conservative lawmakers because it had upheld a deregulatory interpretation of policy by the Reagan administration, the Chevron doctrine gave the Environmental Protection Agency — and federal agencies more broadly — the power to interpret ambiguous regulatory language in laws enacted by Congress, as long as the agency’s interpretation was reasonable.

By rolling Chevron back, the Court decided it should no longer defer to executive branch interpretations of the laws involving its agencies. It has now limited the power of presidentially appointed officials to determine how their agencies should be run under existing laws.

“So that is, in theory, taking power away from unelected officials,” Justin Crowe, a professor of political science at Williams University who researches the Supreme Court, told Business Insider. “But, where is that power going? It’s not exactly going to the people or to elected officials. In some roundabout sense it might be going to Congress, but in reality, it’s going to courts and judges, and giving courts and judges the ability to second-guess agency decisions.”

Under the new rules, federal agencies wouldn’t be the authority on the regulations they enforce. That means a plaintiff could challenge regulatory rules and enforcement methods by agencies like the EPA, Securities Exchange Commission, or Department of Health and Human Service, and the Court would be allowed to interpret the legal regulations, potentially clawing back even more power from the executive branch.

A one-two punch against regulation

Corner Post was decided on July 1, receiving less media attention than Loper did several days prior. But, when combined with the outcome of the Loper decision, Corner Post “almost encourages the targets of administrative regulation to sue,” according to Jonathan Entin, a retired constitutional law professor at Case Western Reserve University.

“Loper says no deference to the agency; the courts are supposed to interpret regulations. But the Corner Post case, which was a challenge to a Federal Reserve Board regulation about card swiping fees, may encourage loads of legal challenges,” Entin, who clerked for former Supreme Court Justice Ruth Bader Ginsburg while she was in the DC Circuit, said.

In the Corner Post case, Entin told BI, the Court expanded the six-year time limit for plaintiffs to bring lawsuits against federal agencies over their regulatory rules. The new limitations are no longer based on when the rule was implemented, as a lower court had determined. Instead, the high court decided the countdown begins when a plaintiff says they were injured by the rule — which “opens up every rule for renewed challenges by just anybody,” Entin said.

This means that a plaintiff could sue over a rule enacted decades ago if they can make a case that they were hurt by the regulation within the last six years — like a newly created gas station suing over emissions regulations that it claims hinder its business, giving the current court a window to reinterpret old law.

With Corner Post, Entin said, the Supreme Court created a statute of limitations that, from the standpoint of federal agencies, never really expires.

A ‘tsunami of lawsuits’

In her dissent in the Corner Post case, Justice Ketanji Brown Jackson noted that taken together, the Loper and Corner Post decisions would open up a “tsunami of lawsuits” from plaintiffs who have grievances with various federal regulations — from the Federal Reserve Board’s fees for debit card processing to the Environmental Protection Agency’s Clean Air Act and beyond. 

Those inevitable legal challenges will offer the Court ample opportunities to weigh in — and flex its power — in the future.

But the Court didn’t stop at giving itself the reins to interpret regulations that federal agencies are beholden to.

The most striking example might be the Supreme Court’s ruling in Trump v. United States, in which the court granted widespread immunity to sitting presidents for official actions taken in office. But an insidious element of the Trump case is that it gave the judiciary the power to decide what exactly constitutes an official, protected, action, compared to an unofficial — and thereby unprotected — one.

In the Trump case, the Supreme Court offered Trump broad immunity for some of his acts concerning his January 6 election interference case. It also kicked some decisions back down to DC District Judge Tanya Chutkan to determine whether other elements of the charges against the former president would be protected by the “official act” immunity or if he could still be prosecuted for them.

Additional challenges from the Trump camp on Chutkan’s decisions could land the case back on the Supreme Court’s desk for more specific interpretation.

The pattern is not limited to the immunity case or those involving business regulations — it’s part of a trend of the Supreme Court dismantling the non-presidential powers of the executive branch, rolling back laws, and reversing lower court rulings involving guns, emergency abortions, and where homeless people are allowed to sleep.

In the July 6 episode of Slate’s Supreme Court analysis podcast “Amicus with Dahlia Lithwick,” Senior Court Reporter Mark Joseph Stern said the Court spent this term expanding its power and “restructuring representative democracy to make it less representative and less democratic.”

And it will keep happening no matter who is in the White House.

“It strikes me that this is a court that does not have a modest view of its own role,” Entin told BI. “It has reached out to decide things that it didn’t necessarily have to decide, and by doing so, it encourages other potential litigants to try to swing for the fences. And whether the court got these cases right or not, I think we’re going to see more cases raising these sorts of issues come along.”