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Conservative Legal Movement’s Agenda Unites Court’s Rulings on Executive Power

Conservative Legal Movement’s Agenda Unites Court’s Rulings on Executive Power

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The Supreme Court seemed to take two views of executive power this term, saying presidents should have immunity to free them from constraints while also scaling back the ability of the executive branch to impose regulations.

But both have been the targets of the conservative legal movement, which sees no contradiction.

In a victory for former President Donald J. Trump that will reverberate long after he is gone, the court’s conservative supermajority bestowed immunity from prosecution upon presidents who use their office to commit crimes.

The same justices issued a series of rulings that will make it harder for administrative agencies to impose rules that can cut into the profits of business interests. Those include regulations aimed at ensuring that the air and water are clean, that food, drugs, cars and consumer products are safe, and that financial firms do not defraud people.

In the eyes of the conservative legal movement, presidential power is good while that of regulatory agencies — even though they are housed in the executive branch — is bad.

Indeed, the movement, and the wealthy donors who funded its rise, has sought to expand presidential power in part so that when Republicans win the White House, they would be better able to restrain and roll back the administrative state.

The conflict traces back to the Great Depression and the New Deal, when it became clear that the economy, after the Industrial Revolution, technological change and banking crises, had grown too complex for Congress to capably regulate through statutes alone.

In response, President Franklin D. Roosevelt and his Democratic allies in Congress created the modern administrative state. Congress passed laws that govern different sectors of the economy at a broad level and created specialized agencies to regulate them at a detailed level.

Technical experts at the agencies study complex issues — like how much of a certain chemical can be emitted by factories into the air or water before becoming unsafe — and then the agencies issue and enact regulations.

Those agencies are part of the executive branch. But presidents do not fully control the agencies in the same way that they direct the military as the commander in chief.

Some, like the Securities and Exchange Commission, are independent agencies that operate outside the political control of the White House. Presidents get some say in the officials who oversee such agencies, but cannot direct their actions or fire them if they disregard the policy preferences of those in the White House.

Other parts of the federal bureaucracy, like the Environmental Protection Agency, are set up to be run by a single presidential appointee whom a president can fire for any reason. But in practice, even those agencies are not always as responsive to White House direction as presidents — at least, Republican ones — would like.

For one, because Congress has delegated to both types of agencies some of its legislative power to write legally binding rules, congressional oversight committees closely monitor what their counterpart agencies do, keeping them accountable through their control of agency budgets.

For another, regulatory agencies are staffed by career officials who stay on when the presidency changes hands. They often understand the complex details better than the political appointees who temporarily serve as their supervisors, and — since they chose to devote their careers to working there — most likely personally believe in the missions that Congress has given to their agencies.

As a result, when Republican presidents have tried to impose deregulatory agendas, lawmakers and sometimes agency employees have resisted. For example, if a Republican administrator of the E.P.A. tries to make it easier for factory owners to pollute, civil servants at the agency may move slowly or raise internal objections — and Congress is likely to swiftly find out about them.

Against that backdrop, the conservative legal movement has been skeptical of the power of regulatory agencies — and in turn, preferred that presidents wielded greater political authority over them.

Notably, Mr. Trump has urged oil executives and other business leaders to fund his campaign while promising to cut taxes and regulations. And he has vowed that if he wins a second term, he will increase his own powers partly to dismantle the administrative state. That effort would include bringing independent agencies under his control and making it easier to fire tens of thousands of civil servants and replace them with loyalists to his agenda.

Anti-regulatory libertarians and business interests do not like the cost of obeying regulations, and some see the agencies as cabals of unaccountable, unelected bureaucrats. James Sherk, a former Trump administration official who suggested changing civil service rules, has criticized “intransigent career employees” resisting Mr. Trump’s agenda and “undermining the democratically expressed will of the people.”

But earlier generations of Supreme Court justices upheld the constitutional power of Congress to pass laws creating independent agencies. And critics of the administrative state have never had the political power to get Congress to shut it down and return to a system in which business interests will face specific, legally binding rules only if Congress passes legislation.

Instead, since Richard M. Nixon, Republican presidents have sought to expand White House authority over the permanent machinery of government.

Nixon inherited a level of presidential power that had been growing for a generation and pushed it to new extremes. The historian Arthur M. Schlesinger Jr. called that escalating pattern “the imperial presidency.”

Nixon later summed up his philosophy of executive power over issues of national security as “when the president does it, that means it’s not illegal.” He also sought to impose greater political control over what he considered the entrenched bureaucracies in the agencies. But that effort was derailed when he was forced to resign.

At the same time, however, the conservative legal movement was taking root — and from the start, it included an anti-regulatory agenda. For example, in 1971, a lawyer who had represented the tobacco industry wrote a then-confidential memo for the U.S. Chamber of Commerce proposing a blueprint to fund a long-game campaign to turn public opinion against regulation. The next year, Nixon made that lawyer, Lewis F. Powell Jr., a Supreme Court justice.

In 1981, the conservative legal movement came into power with the administration of President Ronald Reagan, where conservative lawyers sought to revitalize presidential power, which had eroded after Nixon’s fall.

Congress had passed laws in the 1970s to restore checks and balances, and it was then seen as a bastion of Democrats — the party controlled the House from 1955 through the end of 1994. Lawmakers threw up obstacles to Reagan’s activist conservative agenda on matters including the White House’s desires to fund anti-Communist rebels in Nicaragua and its push to scale back regulations on businesses.

In response, the Reagan legal team developed new theories for why Reagan could do what he wanted even if Congress said otherwise. Among them was the so-called unitary executive theory, which holds that the Constitution gives the president exclusive control of the executive branch, so independent agencies are illegitimate.

Three members of the Supreme Court’s supermajority cut their teeth as lawyers in the Reagan administration: Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr.

Reagan also put the mother of Justice Neil M. Gorsuch in charge of the E.P.A., where she slashed budgets and downsized protections against pollution until she resigned amid a scandal involving documents she withheld from a congressional investigation.

That fight led to an investigation by an independent counsel, a prosecutor whom presidents could not fire. So did the Iran-contra affair, in which it came to light that the Reagan White House had secretly sold arms to Iran and steered the proceeds to the Nicaraguan rebels, defying a law that barred funding them.

Although those inquiries did not involve regulatory agencies, they solidified the Reagan legal team’s distaste for independent executive officials. But to those lawyers’ dismay, the Supreme Court in 1988 upheld the constitutionality of independent counsels — a ruling that was incompatible with the unitary executive theory.

Although the conservative legal movement did not yet hold sway on the Supreme Court, the movement’s burgeoning network, the Federalist Society, helped spread its ideas, which would increasingly become a measure by which ambitious conservative lawyers signaled that they would be reliable appointees.

Republican administrations since Reagan’s have revisited those tenets, each moving further to try to curb regulatory agencies and exert more presidential power over them. They have also sought to bolster presidential authority in other respects as well, like President George W. Bush’s expansive claims of national security powers after the Sept. 11, 2001, attacks.

As Republican presidents nominated former lawyers from the executive branch as judges, those beliefs migrated to the federal judiciary. Mr. Trump’s first White House counsel, Donald F. McGahn II, a stalwart of the Federalist Society, made hostility to the administrative state a litmus test in vetting potential judicial nominees.

Before Mr. McGahn advised Mr. Trump to elevate two former Bush administration lawyers, Justices Gorsuch and Brett M. Kavanaugh, they first served as appeals court judges.

In those roles, they clearly signaled their interest in curbing the power of regulatory agencies, including by forcefully questioning a longstanding foundation of administrative law known as the Chevron doctrine. For 40 years, the doctrine required courts to defer to the reasonable interpretations of agencies regarding ambiguous provisions of their laws. In overturning the doctrine last week, the Supreme Court will make it much easier for businesses to successfully challenge regulations in court.

In a 2016 appeals court opinion, Justice Kavanaugh also questioned the constitutionality of independent regulatory agencies, disparaging their existence as an affront to the president’s rightful powers.

“The independent agencies collectively constitute, in effect, a headless fourth branch of the U.S. government,” he wrote.

As a Reagan administration lawyer, Chief Justice Roberts reflected similar skepticism in a 1983 internal White House memo. It showed that he had agreed “that the time is ripe to reconsider the constitutional anomaly of independent agencies,” and he had suggested he did not consider them to operate as truly part of the executive branch.

The essence of this point of view — and the unitary executive theory — is that because the Constitution says “the executive power shall be vested in a president,” Congress should not be allowed to create independent regulatory agencies that operate outside the president’s direction and control.

That same sensibility was on display more than four decades later, when Chief Justice Roberts, in his majority opinion, granted presidents immunity from criminal prosecution. In dissent, the liberal wing accused the majority of making the president, in his every use of official power, into “a king above the law.”

In response, the chief justice argued that presidents do stand apart from all others who must abide by criminal law, declaring that “unlike anyone else, the president is a branch of government.”

The unusual phrase recalled a boast attributed to King Louis XIV of France declaring absolute power: “L’état, c’est moi,” or “I am the state.”



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