The Supreme Court has appeared to take two views on executive power this term, arguing that the president should be given immunity from restrictions while also curtailing the executive branch's ability to impose regulations.
However, the two have been targets of a conservative legal movement that does not acknowledge any contradiction.
The Supreme Court's overwhelming conservative majority's decision to grant immunity to a president who uses the power of his office to commit crimes is a victory for former President Donald J. Trump and one that will have repercussions long after his death.
The same justices have issued a series of decisions making it harder for government agencies to impose rules that could cut into corporate profits, including regulations to ensure that our air and water are clean, that our food, drugs, cars and consumer goods are safe, and that financial institutions don't cheat people.
From the perspective of the conservative legal movement, presidential power is good and regulatory power (even if it is part of the executive branch) is bad.
In fact, the movement and the wealthy donors who funded its rise have sought to expand presidential power so that they can better restrain and shrink the administrative state if Republicans win the White House.
The conflict dates back to the Great Depression and the New Deal, when the economy had become too complex after the Industrial Revolution, technological advances, and banking crises, and it became clear that Congress could not adequately regulate it by statute alone.
In response, President Franklin D. Roosevelt and his Democratic allies in Congress created the modern administrative state: Congress passed laws governing broad sectors of the economy and established specialized agencies to regulate them in detail.
Technical experts from each agency study complex issues, such as how much of a particular chemical needs to be released from a plant into the air or water to become dangerous, and then the agencies issue and enforce regulations.
These agencies are part of the executive branch, but the president does not have total control over them any more than he does over the military as commander in chief.
Some independent agencies, such as the Securities and Exchange Commission, operate outside the political control of the White House. The president has some say in the officials who oversee those agencies, but he cannot direct or fire officials who ignore White House policy guidance.
Other parts of the federal bureaucracy, like the Environmental Protection Agency, are set up to be run by a single person appointed by the president who can fire him for any reason, but in practice even those agencies don't always follow the White House's lead as much as presidents (at least Republican presidents) would like.
First, because Congress has delegated some of its legislative power to create legally binding rules to both types of agencies, Congressional oversight committees hold the other agency accountable by closely monitoring its activities and controlling the agency's budget.
Regulatory agencies are also staffed by career bureaucrats who stay on from president to president, who often understand the intricate details better than the political appointees who serve in temporary oversight roles, and who are more likely to personally believe in the mission Congress has given their agencies because they chose to devote their careers to working there.
As a result, when Republican presidents try to impose deregulatory policies, they are sometimes met with resistance from lawmakers and EPA officials. For example, if a Republican EPA administrator tried to get a factory owner to reduce pollution, agency officials might move slowly or face internal dissent, and Congress would likely find out quickly.
Against this backdrop, conservative legal circles have been skeptical of regulatory power and have instead wanted the president to exercise greater political authority over regulators.
Notably, Trump has solicited campaign contributions from oil executives and other business leaders, promising to cut taxes and regulations, and vowing to expand his own powers if elected to a second term as part of dismantling the administrative state, including by taking independent agencies under his control and making it easier to fire tens of thousands of public servants and replace them with loyalists.
Anti-regulation libertarians and business interests hate the cost of complying with regulations, and some see government agencies as a cabal of unaccountable unelected bureaucrats. James Shirk, a former Trump administration official who proposed changes to the civil service, has criticized hardline career officials who resist Trump's policies and “undermine the democratically expressed will of the people.”
But previous generations of Supreme Court justices upheld the constitutional authority of Congress to pass laws establishing independent agencies, and critics of the administrative state have never had the political power to ask Congress to shut down the administrative state and return to a system in which corporate interests face specific, legally binding rules only if Congress passes a law.
Instead, Republican presidents since Richard M. Nixon have sought to expand White House power over the permanent institutions of government.
Nixon inherited a generation of increasing levels of presidential power and pushed it to new extremes, a pattern historian Arthur M. Schlesinger Jr. has called the “imperial presidency.”
Nixon later summarized his philosophy of executive power on national security issues as “If the President does it, it's not illegal.” He also sought to increase political control over the agency's entrenched bureaucracy, but his efforts were thwarted when he was forced to resign.
At the same time, however, a conservative legal movement was taking root and included an anti-regulation agenda from its inception. In 1971, for example, a lawyer representing the tobacco industry wrote a confidential memo to the U.S. Chamber of Commerce proposing a blueprint for funding a long-term campaign to turn public opinion against regulation. The following year, President Nixon appointed the lawyer, Lewis F. Powell Jr., to the Supreme Court.
In 1981, the conservative legal movement emerged under the administration of President Ronald Reagan, as conservative lawyers sought to restore presidential power that had been weakened after the downfall of President Nixon.
Congress had passed checks and balances legislation in the 1970s and was considered a Democratic bastion at the time, having controlled the House from 1955 until the end of 1994. Lawmakers hurdled President Reagan's activist conservative policies, including the White House's desire to fund anti-Communist rebels in Nicaragua and its push to roll back regulations on business.
In response, Reagan's legal team developed new theories for why he could do what he wanted even if Congress objected, including the so-called unitary executive theory, which argues that the Constitution gives the president exclusive executive power and therefore no independent branch is legitimate.
Three of the Supreme Court's supermajority justices cut their teeth as lawyers under the Reagan administration: Chief Justice John G. Roberts, Jr., Justice Clarence Thomas, and Justice Samuel A. Alito, Jr.
President Reagan also appointed Judge Neil M. Gorsuch's mother to head the Environmental Protection Agency, where Judge Gorsuch cut the agency's budget and rolled back protections against pollution, only for Gorsuch to resign in a scandal over documents he had concealed from a congressional investigation.
That fight led to an investigation by the Independent Counsel, a prosecutor the president couldn't fire, as in the Iran-Contra affair, which found that the Reagan administration had secretly sold arms to Iran and funneled the proceeds to Nicaraguan rebels, ignoring laws against funding them.
Although these investigations did not involve regulatory agencies, they reinforced Reagan's legal team's dislike of independent prosecutors. To the lawyers' dismay, however, the Supreme Court upheld the constitutionality of independent counsel in 1988, a decision at odds with the unitary executive theory.
Although the conservative legal movement had not yet exerted any influence on the Supreme Court, the movement's burgeoning network, the Federalist Society, helped to popularize its ideas, which gradually became the standard by which aspiring conservative lawyers demonstrated that they were trustworthy appointees.
Republican administrations since Reagan have revisited these principles, trying to rein in regulatory agencies and expand presidential power over them, as well as to give the president greater power in other areas, such as President George W. Bush's expanded national security powers after the September 11, 2001, terrorist attacks.
These beliefs have also seeped into the federal judiciary as Republican presidents nominated former executive branch lawyers to serve as judges. Donald F. McGahn II, Trump’s first White House counsel and an ardent supporter of the Federalist Society, made hostility to the administrative state a litmus test for selecting judicial nominees.
Before McGahn advised President Trump to promote two former Bush administration lawyers, Justices Gorsuch and Brett M. Kavanaugh, both of whom served on the U.S. Court of Appeals.
In these roles, they have made it clear they are interested in curbing regulators' power, including by casting strong doubts on a long-standing bedrock of administrative law known as the Chevron doctrine. For four decades, that doctrine has required courts to defer to agencies' reasonable interpretations of ambiguous provisions in the law. The Supreme Court's overturning of that doctrine last week will make it much easier for companies to challenge regulations in court and win.
In a 2016 appeals court decision, Judge Kavanaugh also questioned the constitutionality of independent regulatory agencies and held them in contempt as an affront to the legitimate power of the president.
“Taken together, the independent agencies effectively constitute a leaderless fourth branch of the U.S. government,” he wrote.
Chief Justice Roberts, a former lawyer during the Reagan administration, expressed a similar skepticism in an internal White House memo in 1983. In it, he agreed that “the time is ripe to reconsider the constitutional anomaly of independent agencies” and suggested he did not believe independent agencies truly function as part of the executive branch.
This view, and the essence of the unitary executive theory, is that because the Constitution provides that “executive power is vested in the President,” Congress should not be permitted to create an independent regulatory agency that operates outside the direction and control of the President.
The same sensibility was expressed more than 40 years later when Chief Justice Roberts' majority opinion affirmed presidential immunity from criminal prosecution. In dissent, liberals charged that the majority had made the president a “king above the law” in every exercise of civil power.
The Chief Justice responded by arguing that the President is a separate entity from all other people who must comply with criminal law, and that “unlike anyone else, the President is a branch of government.”
This unusual phrase recalls a boast attributed to France's King Louis XIV, who proclaimed his absolute power: “L'état, c'est moi” (I am the state).
