The Constitutionalists: John Roberts and Donald Trump

Many of the president’s actions align with the chief justice’s efforts to restore the U.S. government’s structural integrity

By James Taranto of The WSJ. Excerpts:

"Yet Article II also strictly limits his authority. It provides only that “the executive Power shall be vested” in the president. He gives effect to the law, but Congress (Article I) writes it and the judiciary (Article III) provides the authoritative reading. Mr. Trump affirmed this balance in a Feb. 19 executive order: “Ending Federal overreach and restoring the constitutional separation of powers is a priority of my Administration.”

The order directs agency heads to review all regulations and identify several categories of them for rescission, modification or nonenforcement. Among the targeted rules are those “that are based on anything other than the best reading of the underlying statutory authority or prohibition” and those “that implicate matters of social, political, or economic significance [and] are not authorized by clear statutory authority.”

This is the opposite of a power grab. Mr. Trump is asserting control of the executive branch and commanding it to bow to Congress by invalidating regulations that lawmakers never authorized. In doing so he amplifies the authority the Supreme Court exerted in two of Chief Justice Roberts’s decisions: Loper Bright v. Raimondo (2024) and West Virginia v. Environmental Protection Agency (2022).

In Loper Bright, the justices overturned a 1984 precedent and reclaimed the power to say what the law is, which the court had improvidently relinquished to the executive branch. In Chevron v. NRDC, environmentalists challenged the easing of an emissions regulation. The justices sided with the Reagan EPA and haphazardly mandated that federal judges defer anytime an agency administrator made a “reasonable interpretation” of an unclear statute. That effectively turned appointed bureaucrats—and, in practice, their politically unaccountable subordinates—into both lawmakers and judges.

In West Virginia, the court followed the legal lead of the first Trump administration. The EPA in 2019 repealed the Obama-era Clean Power Plan on grounds that it violated the “major questions doctrine,” which holds that agencies can’t make “decisions of vast economic and political significance” without clear congressional authorization. After the Biden EPA reinstated the plan, the justices struck it down and embraced the major-questions doctrine."

"Quoting Alexander Hamilton in Federalist No. 70, the chief justice observed that the Founders thought “the purpose of a ‘vigorous’ and ‘energetic’ Executive . . . was to ensure ‘good’ government,’ for a ‘feeble executive implies a feeble execution of the government.’ ”"

"In Humphrey’s Executor v. U.S. (1935), the high court upheld a provision of the Federal Trade Commission Act that prohibits the president from firing an FTC commissioner without cause. Although the FTC is nominally in the executive branch, the court found that Congress intended for it to be “a body of experts” whose “duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.”"

"The Constitution says nothing about government by “experts,” and those “quasis” make a mockery of the structural separation of powers."