Former President Donald Trump gave conservatives the Supreme Court of their dreams. If he wins in November, it is also poised to undercut his ability to implement his second-term agenda.
A handful of legal groups partially backed by right-wing donors Charles Koch and conservative legal activist Leonard Leo are leading the cases before the court to overturn a long-standing legal precedent, called Chevron deference, that allows government agencies to interpret the gaps and ambiguities in laws. If they succeed, Congress will be responsible for hashing out the minutia in every policy, something Congress is not known for doing.
But a future Trump administration would also have to grapple with how the sweeping win for the conservative, deregulatory movement could curb his own policy options if he wins in November.
“Without a high degree of deference, a lot of the things that are certainly in his campaign plan are absurd,” administrative law scholar Richard Pierce told NOTUS. “There’s no way you can support [his policy proposals] with the language of statutes or judicial precedents, and when he was president the first time around, his track record in the courts was very, very poor.”
Trump’s policy agenda for 2025 includes firing large swaths of federal government workers, undoing Biden emissions, housing and a range of other regulations. Changing or reversing regulations without congressional action requires a certain level of court deference to agencies to make changes in areas Congress has not been explicit about.
And while experts across the political spectrum acknowledge that overturning Chevron would be a much bigger hit to attempts to regulate industry than it would to Trump’s proposed deregulatory actions — Chevron deference is also a “fair weather friend” to the executive branch in charge. It grants some leeway to whichever president oversees the agencies, experts say, whether it’s a Republican Trump administration or a Democratic Biden administration.
The conflicting interests between the right’s push to curb agency authority and Trump’s own vision for sweeping reversals of Biden regulations could create a complicated legal environment for Trump to actually implement his policy goals.
“Turning back of this concept of deference to the agency’s interpretations will dampen the tendency and the ability of executive agencies to undertake bold new policies to break new ground and that swing 180 degrees from how statutes had previously been interpreted,” Heritage Foundation fellow and former Trump administration appointee Steven Bradbury told NOTUS. “That would limit the discretion of presidents and executive agencies going forward. So, therefore, it would limit a new President Trump’s ability to make those kinds of policy changes as well.”
The Trump administration failed to legally defend many of his policies during his first presidency, even with Chevron deference as a standing precedent in lower courts (the Supreme Court hasn’t relied on it since 2016). He had the most Supreme Court losses of any president in almost a century, The Washington Post reported in 2020, after Trump tweeted, “Courts in the past have given ‘broad deference.’ BUT NOT ME!”
Without Chevron deference, Trump could have even less sway in convincing lower courts that his policies are legally sound.
The Chevron case before the Supreme Court was brought by fishing companies against a Department of Commerce regulation requiring companies to pay for certain fishing monitors on their boats. The relevant 2007 law doesn’t explicitly put monitoring costs on fishing companies, but, for decades, courts have allowed agencies to make rules where the law is ambiguous under Chevron deference. A ruling on whether courts should continue granting government agencies that deference is expected in June.
Tossing Chevron deference is widely panned on the left as undermining agencies’ authority to pass rules and regulations and paving the way for industries to skirt oversight to maximize profit at the cost of public protections. Proponents of Chevron also argue that the pendulum swing is overblown and that deferring to agency expertise in policy minutia has actually been a stabilizing force against ideologically driven judges across administrations.
Unlike other precedents overturned by a Supreme Court reshaped by Trump, like Roe v. Wade, the conservative opposition to Chevron deference is a decidedly recent about-face in the conservative movement.
Sign up for the latest from NOTUS.
The 1984 Supreme Court case setting the precedent was a win for Republicans and the oil industry — allowing Chevron to abide by the more lenient Environmental Protection Agency emissions regulations implemented by the Reagan administration, despite a challenge brought by environmentalists.
“One allure of broad regulatory power is whichever party is in office tends to like it, and that is a siren song of ‘Think of all the good things I could do,’” Sen. Ted Cruz, who led an amicus brief in the Supreme Court case in favor of overturning Chevron deference, told NOTUS. “But every good thing one party can do is mirrored by bad things the other party can do, and I think the much better response is respecting the constitutional structure.”
But most proponents of Chevron don’t see the argument as the kind of pure ideological commitment to the Constitution like Cruz. Multiple experts who spoke to NOTUS trace the shift in the conservative movement against Chevron, in large part, as reactionary to the second election of former President Barack Obama and reforms passed through executive authority within government agencies.
“There was a fear that demographic change in the United States might have taken the presidency away from conservatives for some foreseeable future,” administrative law attorney Craig Green said. “I think there may have been a political realignment around this reelection that changed their view of the president’s role in conservative movement politics.”
Despite executive power going back to conservatives in a Trump presidency, the momentum against Chevron grew and took hold in the broader conservative agenda against the administrative state, Green argues.
Trump nominated three justices who have signaled support for overturning Chevron, including the most vocal critic, Neil Gorsuch. Multiple experts and politicians see Gorsuch as appointed primarily because of his views against Chevron deference.
But for Chevron’s defenders, the idea that overturning it could curb Trump’s worst impulses doesn’t outweigh the harm it would do to the future of government regulation.
“I’d much rather have it — even during the Trump administration — than not have it at all,” Public Citizen’s Allison Zieve told NOTUS, adding, “A lot of the things that Trump sort of spews out lately or that are in that Project 2025 document are not things that an agency could lawfully do, and you wouldn’t need Chevron to overturn those actions.”
Sen. Mazie Hirono signed on an amicus brief from Democrats against overturning Chevron. “I really think that there’s no way that legislation can cover all of the contingencies that could arise. This mainly applies to what I would call protective legislation, so there’s a danger that a lot of laws will be overturned,” she told NOTUS.
As to whether there’s a roundabout perk of overturning Chevron reining in a potential president Trump, she said it’s the last thing on Hirono’s mind. “I couldn’t even tell you what a future Trump presidency would mean for all of us, except that our entire country will be screwed,” she said. “I’ll leave it at that.”
—
Claire Heddles is a NOTUS reporter and an Allbritton Journalism Institute fellow.