If enacted, Donald Trump’s sweeping proposals on immigration, the federal workforce and education will almost certainly end up in the courts.
And thanks to the Supreme Court, the judges presiding will have a lot more power over what those policies look like. That could make Donald Trump’s judicial picks the most powerful judges in decades, most of whom will remain on the bench long after Trump is term-limited out of office.
Over the summer, the Supreme Court’s Loper Bright ruling overturned a 40-year-old precedent of letting the executive branch interpret ambiguous laws, theoretically limiting either party’s power from the White House. Supporters praised the decision as taking power away from “unelected bureaucrats.”
Unless Congress starts writing more specific laws and taking hard votes — which seems extremely unlikely under such a slim Republican majority — that power slides to judges instead, administrative law experts say.
“That’s what Loper Bright does; it confers a tremendous amount of discretion on lower court judges that in turn makes the composition of the judiciary very, very important,” legal scholar Richard Pierce told NOTUS, adding that Trump is set to make more than 200 court appointments during his second term.
“That’ll be enough to change the composition of several of the circuit courts and to change the meaning that’s given to federal law in these regions.”
Over the past six months, the Loper Bright decision has already been cited in more than 150 lower court cases and at least 54 courts have issued opinions citing the ruling, according to data provided to NOTUS by Democracy Forward, a left-leaning self-described “national legal organization dedicated to the advancement of democracy and progress.”
Most of the cases are complex or ongoing, but there are a handful of cases where judges explicitly used the change to strike down Biden-era labor, health and other rules. Multiple courts cited Loper Bright, for example, to block a new Department of Education rule banning discrimination against trans people under Title IX.
The Loper Bright ruling was always likely to have an outsize impact on Democratic presidents over Republican ones, according to experts, because corporations and private interests are more likely to challenge pro-regulatory action than deregulatory action. (Trump told reporters last week that he plans on “eliminating 10 old regulations for every new one.”)
But in a deadlocked Congress with a slim Republican majority, Trump is likely to turn to federal agencies to try to eke out wins. Outside public interest groups are counting on it and are planning to use the ruling as a new tool against him too.
“I think there’s going to be a lot of use of the Loper Bright ruling to push back against bad regulations during the Trump administration,” Reshma Ramachandran, co-director at a Yale regulatory research group, told NOTUS. “A lot of policies might be pushed through the executive branch rather than through Congress given the difficulties of being able to get legislation to pass.”
Administrative law experts say six months isn’t enough time to establish a clear overall picture of how judges are implementing the ruling yet. But the few of the key cases where Loper Bright has been used to overturn Biden-era rules point toward judges taking advantage of their newly expanded power.
Now comes the test of how they’ll use it against Trump’s rules — and who Trump will pick to grant that power to.
Here are a few of the ways judges have already referenced Loper Bright to either overturn or reconsider past approvals of Biden-era rules:
On immigration: A federal court in Mississippi sided with the Chamber of Commerce to halt the implementation of a Biden-era Department of Labor rule granting migrants with temporary agricultural visas collective bargaining rights. The court pointed to Loper Bright, writing, “The Court may not presume that where ambiguity exists Congress intended to delegate broad authority to an agency.”
On labor: A 5th Circuit Court overturned a 2021 Department of Labor rule limiting how much time tipped workers can spend doing non-tipped work at subminimum wages. “Congress cannot have intended the tip credit to turn on so fine a distinction,” the court wrote. A Texas court also blocked the Federal Trade Commission’s rule banning most noncompete clauses by pointing, in part, to Loper Bright.
On health care: Federal health agencies issued a rule in May 2024 that expands the definition of sex-based discrimination to prohibit discrimination against trans people. Three separate courts blocked the law from taking effect after SCOTUS issued Loper Bright. In one of the cases, a Mississippi court blocked that part of the rule from taking effect nationwide, writing, “The Supreme Court recently held that agencies are no longer entitled to deference.”
On education: A similar April 2024 Department of Education rule expanded Title IX to prohibit discrimination based on gender identity. Two courts in Missouri and Kansas cited Loper Bright to block enforcement of the rule in about two dozen states.
On finance: A Biden-era Department of Labor rule allowed retirement fund managers to weigh ESG — the catchall term for environmental and social factors and equity in corporate governance — in investment decisions. A Texas court originally upheld the rule, but the 5th Circuit vacated their decision and directed the court to reconsider the challenge to the rule “in light of Loper Bright.”
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Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow.