When, early in Donald Trump’s presidency, senior advisor Steve Bannon promised that the administration would fight every day for the “deconstruction of the administrative state,” most Americans probably weren’t even sure what this meant. High school civics students hear that the Constitution creates a three-part government structure—Congress, the president, and the courts—but learn little about the other institutions that have always done most of the daily work of government.

These are the administrative agencies that make up Bannon’s reviled “administrative state.” They currently number 400 or so departments and offices—from the Environmental Protection Agency, the U.S. Postal Service, and the Securities and Exchange Commission to the Food and Drug Administration, the National Labor Relations Board, and the Federal Election Commission—with over 3.5 million civilian and military employees, budgets totaling more than $1 trillion, and legal responsibilities covering the gamut of daily life. These agencies are created, funded, overseen, and given directions by Congress. Anyone who eats food, drinks water, breathes air, drives a car, takes medicine, receives mail, collects retirement benefits, or owns publicly traded stock—to name a tiny set of examples—has crossed paths, even if unwittingly, with the work of an administrative agency.

The Supreme Court is poised to fulfill Steve Bannon’s promise to destroy the administrative state.

Since its very first legislative session in 1789, Congress has often chosen to delegate power to administrative agencies in broad terms, imbuing them with particular missions but leaving enough room for discretion to act in light of varied, complex, and changing circumstances. To take one modern example, the Clean Air Act of 1970 instructs EPA to set national air quality standards for harmful air pollutants at a level that allows “an adequate margin of safety” and is “requisite to protect the public health.” Lacking the kind of scientific expertise necessary to set such standards—and desiring to create a regulatory program that would address air pollution problems that were poorly understood or even completely unknown at the time—Congress chose not to set the standards itself but to direct EPA to set them and update them within the parameters Congress specified. In many cases Congress has also found that the substantive work of an agency requires some independence from political pressures. It has therefore structured the processes for the appointment and removal of agency officials in such a way as to provide a buffer zone between agency personnel and the politics of the presidency.

The Supreme Court long policed these kinds of legislative choices with a light touch, understanding that Congress was in a better position than the Court to identify the appropriate breadth of delegations of authority to agencies and the appropriate degree of political independence for them. But this long period of legislative hegemony and judicial restraint with respect to the powers and structure of federal agencies appears to be coming to an end. Deploying originalist arguments, the conservative justices on today’s Supreme Court have served notice—most recently in West Virginia v. EPA, decided this Junethat they are prepared to weaken and restructure contemporary government in order to return us to their vision of our constitutional past. For these justices, the fact that their originalist interpretations of the views of the Constitution’s framers align perfectly with the deregulatory and anti-government program of today’s Republican party is a mere coincidence.

The legal arguments being offered in three cases to be heard in the Supreme Court’s upcoming term show how far the Court has already gone in expanding the bounds of acceptable legal argument with respect to the legitimacy of government as we know it. This turning point represents the culmination of the right’s decades-long project to dismantle the administrative state, and nothing less than the future of the effective governance is at stake.


On October 3 the Court will open its new term by hearing argument in a case, Sackett v. EPA, that could shatter the federal government’s ability to protect the nation’s water bodies from pollution. The legal issue concerns the scope of the EPA’s power under the Clean Water Act to require permits—and thus pollution controls—for activities that threaten the environmental integrity of wetlands. A brief on behalf of scientific organizations, supporting EPA, informs the Court that the legal framework proposed by the parties who are challenging EPA’s authority would “effectively eliminate Clean Water Act protections for almost all wetlands and the majority of streams,” with (literally) downstream effects on rivers, lakes, and streams. The case could also have broader implications, well beyond the Clean Water Act, as the litigants disputing EPA’s authority urge the justices to deepen and extend their recent decisions deploying an “originalist” theory of constitutional interpretation in the service of a political project to weaken the federal government.

Sackett shows how much the conservative justices have already enlarged the boundaries of acceptable legal argument regarding governmental power. The Clean Water Act prohibits unpermitted pollution discharges into the “navigable waters,” which the law defines to include “the waters of the United States.” In an important case decided in 1985 the Supreme Court deferred to EPA’s expert view that the hydrological connections between wetlands and surface waters like lakes, rivers, and streams justified application of the Clean Water Act’s protections to wetlands. In Sackett, the homeowners who do not want to have to apply for a permit to build in a wetland argue that the Court should not defer to EPA’s view about the scope of its authority under the Clean Water Act.

Other participants in the case, supporting the homeowners in amicus briefs, go bigger: they argue that the Constitution actually forbids interpretive deference to the EPA. They claim that the Court’s own longstanding principle that the courts should defer to agencies’ reasonable interpretations of ambiguous provisions in the statutes they are charged with administering—a principle known as “Chevron deference,” after the case most famous for embracing it—is at once an unconstitutional encroachment on judicial power and an unconstitutional enlargement of executive power. They also charge that if the Clean Water Act did indeed allow the EPA to apply the statute’s requirements to the wetland on the homeowners’ property, the statute would reflect an unconstitutionally broad delegation of authority because Congress is not allowed to delegate “major” policy questions to an agency.

Not long ago, these legal arguments were fringe at best.

Not long ago, these legal arguments were fringe at best. Longstanding and well-settled law held that an agency is entitled to judicial deference for its reasonable interpretations of the statutes it administers. In Chevron itself, decided in 1984, the Supreme Court explained that this principle respected both the superior technical expertise of agencies as compared to the courts and their closer connection to electorally accountable officials like the president. For decades, with relatively few exceptions, the Court deferred to agencies’ interpretive choices. In the specific context of the Clean Water Act, not only did the Court defer, early on the statute’s history, to EPA’s views on the scope of its jurisdiction over wetlands, but in a related case in 2006, John Roberts wrote a concurring opinion specifically reminding EPA of the “generous leeway” the agency enjoyed under Chevron. As recently as 2013 the Court strengthened Chevron deference by holding that it applied even to interpretations that concerned the scope of agency’s own jurisdiction.

Until a short while ago the law on Congress’s power to delegate authority to agencies was, if anything, even steadier than the law on Chevron. The Supreme Court has long suggested that, in theory, Congress should not delegate its “legislative” power to any other person or entity, including to administrative agencies. But the Court has also appreciated the difficulty, in practice, of drawing a bright line between legislative power, on the one hand, and executive and judicial power, on the other. As a result, with only two exceptions in over two hundred years, the Court has not felt qualified to deem any particular delegation of authority unconstitutional. As recently as 2001 the Court upheld the Clean Air Act against a claim that Congress had delegated overly expansive authority to EPA, under overly broad statutory terms. (The case involved the statutory provision on national air quality standards.) Writing for the Court in a unanimous decision, Antonin Scalia recognized the absurdity of thinking that the three functions of government specified in the Constitution—legislative, executive, and judicial—can be finely distinguished from each other. “A certain degree of discretion,” he wrote, “and thus of lawmaking, inheres in most executive or judicial action.”

Two other cases before the Supreme Court, to be argued in November, portend further destabilization of long-settled understandings of federal power. Securities and Exchange Commission v. Cochran and Axon Enterprise v. Federal Trade Commission raise the question whether the federal courts have jurisdiction to hear constitutional challenges to laws that protect the job security of the administrative law judges who preside over administrative adjudications within administrative agencies, before these judges have completed their proceedings. The underlying constitutional claim in both cases is that the president must have more power—more political power—over the job tenure of administrative judges. While the Court is expected to rule only on the jurisdictional question, not on the merits of the underlying constitutional claims, the briefs against the government tremble with excitement at the prospect that the Court will eventually hold that Congress may not protect administrative judges from personal or political reprisal at the hand of the president.

The petitioners in Axon Enterprise, moreover, are forthright about their disruptive endgame: not only do they hope to bring administrative judges closer to the political apparatus of government, but their case, they almost gloat, “challenges the very existence of the Federal Trade Commission—an independent agency created by Congress—as unconstitutional.”

These claims, too, only recently moved in from the far outskirts of plausible legal argument. Congress has also long determined that an agency’s effectiveness sometimes depends on a degree of independence from political actors such as the president and has specified processes for appointments and removal of agency officials that reflect the degree of political independence that Congress has perceived as necessary for the agency to do its work well. Only in a handful of cases has the Supreme Court ever invalidated a federal statute based on the degree of political independence it gave to agency personnel.

How did we get to this point? The project to dismantle the administrative state as we know it is being carried out by the federal courts, led by the Supreme Court, but its prominence at the highest levels of government did not start there. It started in the White House and Justice Department during the administration of Ronald Reagan four decades ago.


Reagan came into office promising to “get the government off our backs.” With one house of Congress then controlled by Democrats and lower appellate courts dominated by judges appointed by Democratic presidents, the most promising way for Reagan to advance his project of massive deregulation was through presidential influence on administrative agencies. Administration officials understood that, to be most effective, they needed to consolidate power in the executive branch, and in the president himself, and to install judges who would be comfortable with this new concentration of power. This realignment required a new approach to the constitutional separation of powers.

The Reagan administration broke new constitutional ground in three ways central to the current besiegement of the administrative state.

The assault on administrative agencies began under Ronald Reagan four decades ago.

First, the highest legal officials in the White House and Justice Department went all in for a theory of constitutional interpretation that had been floated in the 1970s by a handful of conservative legal academics, a theory then-Attorney General Edwin Meese called “a Jurisprudence of Original Intention.” In widely circulated speeches and official documents, Meese let it be known that the Reagan administration had only one officially sanctioned approach to determining the meaning of the Constitution, and that was “to resurrect the original meaning of constitutional provisions . . . as the only reliable guide for judgment.” By 1988 Meese brought this theoretical perspective into day-to-day legal practice when he instructed Justice Department lawyers litigating constitutional cases to include in their briefs an “original meaning section,” explaining how their legal argument comported with the “original meaning of the constitutional provisions at issue.”

Precisely because the Supreme Court had, at that point, never itself insisted on interpreting the Constitution solely through an originalist lens, the Reagan administration’s interpretive theory justified upending a great deal of constitutional law while purporting simply to return to an earlier, better, more traditional understanding of our constitutional system. Originalism’s “politics of restoration,” as law professors Robert Post and Reva Siegel have explained, “aims to restore an imagined past” and in doing so “provides its proponents a compelling language in which to seek constitutional change through adjudication and politics.” The turn toward originalism at once promised to elevate constitutional jurisprudence above politics and, as Post and Siegel put it, “inspired conservative mobilization in both electoral politics and in the legal profession.” With the narrative of restoration in hand, originalists can justify breaking the government we know, and even creating chaos in the process, because it will return us to a supposedly better time.

Second, the Reagan administration developed an originalist interpretation of governmental structure. That idea has come to be known as the theory of the “unitary executive.” As legal scholar Peter Shane puts it, the theory has nurtured “an organizational psychology of presidential entitlement.” A basic premise of this theory is that, outside of Congress and the courts, the president controls government personnel and decisions all the way down—and that it is unconstitutional for Congress to provide otherwise. (Supreme presidentialism of this kind was also the thin legal veneer for the Bush administration’s torture program.)

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In practical terms, one implication of unitary executive theory is that Congress may not protect the job security of agency officials by limiting the president’s power to fire them. This is the theory that is now putting the legal status of administrative judges and the many independent agencies Congress has created—the Federal Communications Commission, Federal Trade Commission, Securities and Exchange Commission, and more—under a constitutional cloud. Another implication of this theory is that the president has the power not only to remove agency officials but to tell them how to do the jobs Congress assigned to them. This means that the president can tell the EPA head, for example, exactly at what level to set the national air quality standards described earlier. Reagan’s executive order subjecting agencies’ regulations to approval by the White House—still, in fundamental respects, the regrettable model for White House regulatory review today—is a powerful example of how unitary executive theory can justify throttling administrative agencies.

Third, and perhaps most consequentially, the Reagan administration began to pave the way for originalist theory in the courts by pioneering a then-unprecedented partisan process for judicial appointments. The administration moved the initial vetting process into the political apparatus of the Justice Department, diminished the screening role of outside parties like the American Bar Association, and imposed an ideological litmus test on potential judicial candidates. In an internal memorandum, one high-level Justice Department official suggested that “a more explicit connection could be drawn between our views on jurisprudence”—meaning the emerging theory of originalism—and “the mettle of the people that we are nominating to the judiciary.” As Siegel recently put it, the Reagan administration embraced an “executive-branch based strategy of constitutional change—a strategy for criticizing and changing constitutional case law through judicial appointments justified through frames of constitutional restoration.” Originalism began, Siegel explains, “in the executive branch of an administration that employed judges as means to ends, as political instruments of executive branch policy.”

The entanglement of originalist theory and partisan judicial appointments reached a new zenith (or nadir) during the presidency of Donald Trump. White House counsel Don McGahn, who oversaw the judicial nomination process, put in place a “coherent plan” to find nominees who would shrink the size and power of the administrative state. All three of Trump’s nominees for the Supreme Court came from a short list drawn up by Leonard Leo of the Federalist Society, “the maestro of a network of interlocking nonprofits” who contributed tens of millions of dollars to blocking even a Senate hearing for Obama’s nominee, Merrick Garland, and to campaigning for Trump nominees Neil Gorsuch and Brett Kavanaugh. A self-avowed originalist, Leo claimed in a 2020 speech at the Manhattan Institute that the tight separation of the powers of the Congress, the president, and the courts, comprising what he called the “Structural Constitution,” is “the reason that America became, and still remains, the freest and most remarkable country the world has ever known.” The freedom the originalists celebrate, however, is narrow and privileged: it’s the freedom from laws that try to constrain a few of us from hurting the rest of us.


A consequential moment in Reagan’s assault on the administrative state came with the 1984 Supreme Court case Chevron U.S.A. v. Natural Resources Defense Council. “When I am so confused, I go with the agency,” John Paul Stevens said to his colleagues in explaining his vote to uphold EPA’s interpretation of an important but complicated permitting provision of the Clean Air Act. It was a rather self-effacing and incongruous starting point for what was to become the most-cited decision in all of administrative law.

Unlike most other blockbuster cases, Chevron neither arrived at nor left the Supreme Court as a case of great doctrinal importance. Although the justices were closely divided at their initial conference on the case, Stevens ended up writing a unanimous opinion for the six justices who participated in the case. Despite the significance of the case for the underlying permitting program, the justices’ deliberations revealed what law professor Thomas Merrill calls a “cascade toward consensus,” with little substantive back and forth during the drafting of the opinion. Moreover, Merrill explains, the Supreme Court itself, in the immediate aftermath of Chevron, “did not view the decision as having established some novel approach to reviewing administrative legal determinations.”

Reagan paved the way for originalist theory in the courts by pioneering a partisan process for judicial appointments.

On Merrill’s telling, it was Judge Patricia Wald, a Carter appointee on the D.C. Circuit, who first began to make Chevron, the ordinary statutory case, into Chevron, the blockbuster. Merrill does a judge-by-judge tally of the number of D.C. Circuit opinions citing Chevron in the first several years after it came down, concluding that “there is no evidence during these early years that Chevron was associated with partisan affiliation.” From there, Merrill recounts, Chevron gradually went on to be accepted as a foundational precedent by both the lower courts and the Supreme Court.

This story may be well and good in terms of legal analysis, but it misses the origins of Chevron as a political matter. In Chevron the Supreme Court upheld a Reagan-era EPA interpretation of the Clean Air Act that significantly deregulated the largest stationary sources of air pollution in the country. This deregulatory move was one way the EPA aimed to make good on Reagan’s inaugural pledge to “check and reverse the growth of government.” With Democrats in charge of Congress and Democratic appointees dominant in the lower courts, the administration’s path to deregulation had to run through the administrative agencies.

As law professor Craig Green explains in a recent article, probably no one understood this better, or described the dilemma more pointedly, than Scalia, who in the early days of the Reagan presidency was an adjunct scholar at the American Enterprise Institute. Criticizing legislative proposals to rein in bureaucratic power, Scalia wrote at the time that reformers “seem perversely unaware that the accursed ‘unelected officials’ downtown are now their unelected officials, presumably seeking to move things in their desired direction; and that every curtailment of desirable agency discretion obstructs (principally) departure from a Democrat-produced, pro-regulatory status quo.” In the context of “an executive that is seeking to dissolve the encrusted regulation of past decades,” these reformers were, Scalia charged, “scoring points for the other team.”

In this political context, Scalia quickly saw the advantage of Chevron’s deferential posture. After joining the Supreme Court Scalia freely admitted that because (conservative) textualist judges almost never found ambiguity in a statute, they seldom had to award Chevron deference, whereas because (liberal) judges who considered legislative history and purpose as well as statutory text often found statutory ambiguity, they would find themselves accepting an interpretation they thought was wrong with “infinitely greater” frequency. As Green explains, “for Chevron’s conservative supporters, partisan asymmetries were a feature, not a glitch. . . . Chevron was a dramatic success for Reaganite politics across the board—and conservatives knew it at the time.”

Despite its partisan beginnings, Chevron for decades gave the benefit of the doubt to the legal interpretations of agencies in both Republican and Democratic administrations. Theoretically, at least, that was one of Chevron’s assets: it had no explicit political valence. This began to change during the Obama administration, when the Supreme Court began to create carve-outs to Chevron deference that seemed to favor the deregulatory preferences of Republican administrations and to disfavor the regulatory aspirations of Democratic administrations.

At about the same time, Green explains, conservative judges and think tanks suddenly started to make a new and surprising claim: that Chevron deference was not only a bad idea in some circumstances, but that it was unconstitutional. Gorsuch was one of the first judges to assert this view, in a concurring opinion written in 2016 when he was a federal appellate judge. In the White House, McGahn took notice, later calling the opinion Gorsuch’s “standout opinion at the Tenth Circuit.” As Green observes, a month after this opinion came out, Gorsuch appeared for the first time on Trump’s short list for the Supreme Court.

Then Chevron faded away from the Supreme Court’s jurisprudence. After Gorsuch arrived at the Court, the Court—often led by Gorsuch—avoided Chevron issues by finding statutory language clear enough that the agency’s interpretive authority did not come into play. Around the same time, the government stopped asking for deference altogether, prompting at least some courts not to give it because the government had not asked for it. Strangely, the Biden administration has often stuck to this practice, even in important cases. In its recent briefs in West Virginia v. EPA, for example, the government mentioned Chevron only in order to explain the pollution-control strategy that Chevron had approved—not to persuade the Court that it should win. The last time the Supreme Court deferred to an agency’s interpretation under Chevron was in 2016. The lower courts seem to be getting the message: a recent decision from the D.C. Circuit dispensed with Chevron analysis altogether.

It is thus hard to avoid the conclusion that Chevron is dead, though the Supreme Court appears to be in passive-aggressive denial of this fact. Last term the Court mentioned the case on only three occasions, and even then only in passing. In one case, conservative interest groups had asked the Court to overrule Chevron, but the Court managed to approve the agency’s interpretation of a statute without so much as a glance in Chevron’s direction. Chevron has become the name no one dare speak, but its place in administrative law is too central to avoid it forever. For now, the Court has embraced a different interpretive tool: the “major questions doctrine,” a new offshoot of the long-moribund idea that Congress may not delegate its legislative authority to an administrative agency.


While the Court’s conservative justices were falling out of love with Chevron, they were beguiled by a different way of approaching statutory interpretation. When they faced what they saw as an expansive interpretation of an agency’s regulatory authority, they started to explain their denial of Chevron deference partly by pointing to the importance of the underlying policy issue. In withholding deference for the Obama EPA’s decision to require Clean Air Act permits for certain greenhouse gas–emitting sources, for example, the Court in 2014 pointed to the “enormous and transformative expansion in EPA’s regulatory authority” occasioned by the new permitting requirement—which followed the Court’s own, earlier decision holding that EPA had the power to regulate greenhouse gases under the statute.

With lightning speed, the Court parlayed this idea—which it calls the “major questions doctrine”—into a limit not just on agencies’ power, but also on Congress’s power. Soon after the three justices shepherded by Leo and appointed by Trump had taken their seats, the Court explicitly held that Congress must speak loudly and clearly if it wants to give an agency the power to address a question of major economic and political significance. In other words, if conservative justices think that Congress has spoken clearly enough, they can rule it no longer has the power to enlist an agency in helping it to address an issue the justices deem important.

The Court rolled out this legal constraint in three cases decided over the last year. In two of them, Alabama Association of Realtors v. DHS and National Federation of Independent Businesses v. Department of Labor, the Court rejected the Biden administration’s rules aiming to stem the spread of COVID-19 through a national moratorium on evictions and a shot-or-test mandate for large workplaces. In the third, West Virginia v. EPA, the Court rejected—well after it had ceased to have practical or legal significance—the Obama administration’s rule cutting greenhouse gas emissions from power plants. In all of these cases, the Court emphasized, among other things, the economic and political significance of the underlying policy choices.

In the aftermath of these decisions, motivated parties have had little trouble characterizing agency decisions as “major”—and thus illegitimate—unless underwritten by extreme legislative clarity. Agencies’ specific policy choices about immigration, telecommunications, antitrust, student debt relief, climate change disclosures, diagnostic medical devices, insurance coverage of contraceptives, nuclear waste storage, and discrimination based on gender identity and sexual orientation—to name a few—have all been tagged as unlawful because the relevant issues are too important and the statutory language less than crystalline. Even if some of the legal challenges fail, there can be little doubt that the Supreme Court’s new interpretive approach will make agencies warier about tackling the nation’s biggest problems.

Where did the Supreme Court get the power to tell Congress how to draft legislation? Roberts, in his majority opinion in the climate case last term, referred tersely to “separation of powers principles.” In his concurring opinion, Gorsuch elaborated: the major questions idea, he explained, protects the constitutional separation of powers by ensuring that Congress does not delegate legislative power to an administrative agency. In this and other opinions, Gorsuch has made it clear that the way he defines the “legislative” power that may not be delegated is by asking whether the underlying policy choice is “an important subject.”

Gorsuch has thus claimed to resolve the puzzle that has bedeviled constitutional lawyers since the founding of the republic: how to judicially enforce some principle of nondelegation without over-empowering unaccountable courts. From the beginning, judges have balked at the prospect of invalidating delegations of power to administrative agencies because there is no apparent test that can neutrally and predictably distinguish permissible from impermissible delegations of power. Incredibly, Gorsuch—along with the four other justices who have joined or praised one or more of his opinions along these lines—thinks the appropriate test is simply a matter of importance. Needless to say, “importance” is utterly subjective. Law professor Gary Lawson, an avowed originalist, once described the standard tautologically: “Congress must make whatever decisions are important enough to the statutory scheme in question so that Congress must make them.” It would be funny if it weren’t so dangerous.


Maybe it’s only fitting that the political actors on the Supreme Court want to make administrative agencies more political, too. This, at least, is the message of the Court’s campaign against independent agencies.

In creating the Federal Trade Commission in 1914, Congress provided that the president could remove the agency’s commissioners from office only for inefficiency, neglect of office, or malfeasance in office. In 1935, in Humphrey’s Executor v. United States, the Supreme Court unanimously rejected a challenge to Congress’s decision to give the commissioners some independence from the president. For originalists who subscribe to unitary executive theory, Humphrey’s Executor is smack in the middle of their constitutional dartboard.

For some time now, the Roberts Court has been heading toward a direct confrontation with Humphrey’s Executor. In 2010 the Court invalidated a provision of the Sarbanes-Oxley Act, which was enacted in the wake of the Enron accounting scandal in 2002, that protected the job security of the members of the Public Company Accounting Oversight Board. According to this statute, board members could be removed only by the commissioners of the Securities and Exchange Commission, and only for limited reasons, and the SEC commissioners in turn were also removable by the president only for limited reasons. The Court held that this “unusual” double layer of job security was too much for the separation of powers to bear. In his opinion for the majority, Roberts took pains to frame the decision in narrow terms, brushing aside the dissent’s worries about the damaging implications of the case for other governmental arrangements—such as existing job protections for administrative judges.

Without a doubt, the Court’s new interpretive approach will make agencies warier about tackling the nation’s biggest problems.

The next “unusual” agency structure the Roberts Court disapproved of came from the Dodd-Frank law, passed in the aftermath of the 2008 recession. Through the law Congress created the Consumer Financial Protection Bureau (CFPB) and provided that it would be led by a single director, removable only for inefficiency, neglect of duty, or malfeasance in office. In a 2020 ruling, Roberts again wrote the majority opinion rejecting Congress’s decision to give an agency official a degree of political independence. In a first, the chief justice recharacterized Humphrey’s Executor as an exception to a background principle of unfettered presidential removal, as opposed to a background principle of legislative power to create independent agencies. Citing the single-director structure of the CFPB, the breadth and nature of the agency’s powers, and the agency budget’s relative independence from the appropriations process, Roberts declined to create an exception from his new background principle of full presidential control. Without a trace of irony, Roberts justified his aggrandizement of presidential power by citing the framers’ aversion to “concentrating power in the hands of any single individual.”

Roberts’s opinions feature the judicial temperament he strives to project: deciding one case at a time, each on its own merits, just as an umpire calls balls and strikes—with no grand goal in mind. But deciding cases one at a time all in the same direction gets to the desired destination all the same, and the other conservative justices don’t necessarily play ball. Last year Samuel Alito wrote a decision striking down the structure of the Federal Housing Finance Agency (FHFA), also created in the aftermath of the 2008 recession. Alito noted that the agency was headed by a single official, removable by the president only for cause, and that was enough for him. Dispensing with the kind of case-specific analysis Roberts often models, Alito said flatly: “we do not think that the constitutionality of removal restrictions hinges on such an inquiry.” The chief justice’s pretense of judicial minimalism unspools when his colleagues hold the pen.

This term, the Supreme Court will get two more chances to push the boundaries of the separation of powers. In Axon v. FTC, when they were asking the Court to hear their case, the petitioners let the Court know that, “should the Court be inclined to revisit Humphrey’s Executor, this case presents an appropriate opportunity to do so.” With every case in this area, the Court edges ever closer to a ruling that could overturn the long-settled understanding that Congress may create agencies run by officials who enjoy some degree of insulation from personal and political reprisals, destabilizing a significant portion of the government in the process. Moreover, in Axon as well as in SEC v. Cochran, the Court may well take the principle of the unitary executive to an especially absurd extreme by holding that judges deciding individual administrative cases must be as answerable to the president as the attorney general or the secretary of state.


Where does this leave us? Given the trajectory that has brought us to this point, the future looks dire. The idea that Congress must decide all major policy questions itself—super clearly, at that—leaves both old and new legislation vulnerable to judicial trimming or even invalidation. No subject-matter limit has been articulated; any area of governance is apparently at risk. Likewise, unitary executive theory logically entails the rejection of administrative independence—along with all the innumerable decisions over the years that have been made by independent agency officials.

Though it remains to be seen exactly how these ideas will affect Congress, agencies, and the courts, it would be historically obtuse not to conclude that the new conservative legal radicalism will tend to cut against ambitious regulatory action—and toward ever greater power for the unelected justices on the Supreme Court.