The Supreme Court is sending some mixed signals about executive power

This term, the Supreme Court repeatedly rolled back the administrative state and strengthened the judiciary's power over the rest of our government.

• Several important Supreme Court decisions this term dealt with questions of executive power.
• In two rulings, SCOTUS expanded presidential power and limited the rest of the executive branch.
• Where the Court limited the executive branch, it granted power to the judiciary, experts told BI.

With its rulings this term, the Supreme Court created a perfect storm for the lower courts to be inundated with legal challenges on everything from the applications of regulatory laws to the scope of the presidency's power.

In doing so, the high court has set up a political chessboard through which the judicial branch can claw power away from the established executive authority.

Meanwhile, some members of lower courts — such as US District Judge Aileen Cannon, in her Monday decision to toss out Donald Trump's classified documents case — are, intentionally or not, creating ways to assist SCOTUS in methodically shrinking the executive branch's power.

The Supreme Court's attack on executive power

Taken together, two specific Supreme Court decisions this term — on Loper Bright Enterprises v. Raimondo and Corner Post, Inc. v. Board of Governors of the Federal Reserve System — combined to create a window for an array of new lawsuits to challenge once-settled law and be reinterpreted by a deeply polarized court. And in the cunning way the high court's conservative majority phrased its decisions, the justices kept the power to clean up the mess for themselves.

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 siphoning 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.

Similarly, Judge Cannon's Monday decision to toss out the former president's classified documents case will almost certainly find its way to the Supreme Court after appeal.

Cannon, who was appointed by Trump, ruled that the appointment of Special Counsel Jack Smith to prosecute the former president was unconstitutional because Smith was not approved by Congress to fill the role like other legal officers of the US who have the power to impanel grand juries and bring indictments.

Smith was assigned to the job by Attorney General Merrick Garland — a presidentially appointed position. Special counsels have historically been used for major cases in which Justice Department officials may have a conflict of interest, such as the Ronald Reagan-era Iran-Contra affair, Bill Clinton's Whitewater controversy, and the criminal investigation into Hunter Biden.

Clarence Thomas signaled in his opinion in the Supreme Court's immunity case ruling this month that he believes many types of special counsels are unconstitutional. It was only weeks after Thomas's opinion that Cannon made her ruling.

While other conservative justices have not so clearly stated their opinion on special counsels, a future ruling preventing their use would erode the right of the Attorney General's office to appoint special prosecutors, removing that power from the executive branch.

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 can 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."