The Supreme Court recently signaled its interest in limiting the president’s leeway to make irrational policy. Such a curtailment is long past due, as modern presidents increasingly have abused this latitude to push the envelope of unilateral executive power.
Usually, Congress grants regulatory power to administrative agencies (think: EPA, SEC, FERC, etc.). For these agency rules, courts apply “hard look” review to ensure the measure’s reasonableness. Sometimes, however, Congress delegates regulatory authority directly to the president. In this context, courts do not perform reasonableness review of the president’s decision making. That’s because, almost 30 years ago, the Supreme Court exempted the president from “hard look” review.
The problem is that if courts don’t check for reasonableness, then the president has a de facto license to be unreasonable. In early 2019, for example, President Trump declared a bogus “national emergency” to unlock funding for a border wall. Before that, Trump imposed absurd “national security” tariffs on our NATO allies (even Canada). If a regulatory agency, rather than the president, had made these determinations regarding a “national emergency” or “national security,” the agency would’ve been laughed out of court. But because the president is the regulator, courts can’t probe the plausibility of the regulatory rationale.
To be clear, this is a bipartisan problem. Top Democratic lawmakers are pressing President Biden to declare a fake “national emergency” of his own, this time for climate change. And the Biden administration is continuing with Trump’s ridiculous “national security” tariffs. Regardless of their political affiliation, modern presidents are turning to their unfettered regulatory authority to achieve their agendas.
Again, this mess is the Supreme Court’s doing. In a 1992 case named Franklin v. Massachusetts, the Court removed the president from reasonableness review. By thus limiting judicial oversight, Franklin provided a template for presidential power grabs. After Franklin, presidents could scrutinize the statutory code for regulatory powers already on the books, and then “interpret” these provisions to confer broad regulatory power on themselves, without having to worry about judicial oversight.
Although the Franklin case has taken on seminal status over time, the Court failed to give much thought to this crucial holding when it was handed down. In terms of explanation, the Court said only that its decision was born “out of respect for the separation of powers and the unique constitutional position of the President.” According to Professor Kathryn Kovacs, who reviewed the Court’s internal papers, the Justices’ memoranda regarding Franklin “were devoid of any deliberation on the question” of how to review a president’s regulatory authority.
After decades of executive power grabs made possible by Franklin v. Massachusetts, the Supreme Court, at long last, appears ready to rethink how it approaches the president’s regulatory power.
To this end, the Court was piqued by a challenge to an Obama‐era regulation pursuant to the 1906 Antiquities Act, which empowers presidents to create “monuments” on federal lands. Since Franklin v. Massachusetts, presidents have turned to the Antiquities Act to unilaterally regulate huge expanses, without having to jump through the procedural hoops that are otherwise required for these kinds of land‐use policies. Rather than discrete objects, these “monuments” look more like squares on a map. Such monument making typically has occurred during the president’s final year in office.
In 2016, President Obama used the Antiquities Act to establish fishing restrictions for almost 5,000 square miles in the northern Atlantic Ocean. According to the Obama administration, this Connecticut‐sized expanse of ocean constitutes an “ecosystem,” which itself is a “monument.” Of course, ecosystems are present everywhere on earth; under the Obama administration’s definition, therefore, “monuments” are ubiquitous, which is obvious nonsense.
A group of commercial fishing groups, represented by the Pacific Legal Foundation, challenged Obama’s oceanic ecosystem monument in federal court. After adverse decisions at the trial and appellate levels, the fishing groups sought review by the Supreme Court. (The Cato Institute filed a brief in support of the petitioners).
The bad news is that the Court didn’t take the case. The good news is that Chief Justice Roberts issued an unusual statement accompanying the Court’s order denying review. In it, Roberts explained that the case at hand “does not satisfy our usual criteria for granting certiorari.” Nevertheless, he expressed concern over recent exercises of the Antiquities Act, and he hoped for a “other and better opportunities” to consider “what standard might guide our review of the President’s actions in this area.” That’s huge, coming from the Chef Justice, because it signals that the Court is (finally) interested in requiring rationality in presidential policymaking.
As to “what standard might guide [the Supreme Court’s] review of the President’s actions in this area,” the Cato Institute has some ideas! Remember, most regulation is reviewed under the “hard look” standard. But the Court excluded presidential reasoning from “hard look” review. Elsewhere, we’ve proposed a framework for “not‐so‐hard look” or “soft look” review of the president’s regulatory powers.