In the next two weeks, we’re going to see some of the most consequential Supreme Court decisions of our lives. Presidential immunity. Homeless encampments. More Second Amendment. All on the way. But the big dog, in my eyes: “Chevron.”
Let me explain.
A major gripe of the right has been, for a long time now, the growing power of the executive agencies — that is, the three-letter agencies under the executive branch of government. There’s the law enforcement agencies — FBI, DEA, CBP, etc. — and then the more administrative agencies like the FTC, FCC, EPA, etc. These agencies can make rules, which end up functioning like laws.
But wait a minute — isn’t Congress supposed to make the laws?
And therein the rub. Under a previous ruling, SCOTUS created what’s become known as “Chevron deference” (the “Chevron” part comes from one of the litigants in the old case). The “deference” refers to the idea that these executive agencies’ rulings get “deference” by the courts. Essentially: the courts have recognized that these agencies have the power to make rules that function like laws.
Now, the recent “bump stock” decision by SCOTUS wasn’t really a gun decision; it was actually a hit on Chevron deference. The court ruled that the ATF — an executive agency — could not make a rule that a bump stock makes a single-action gun a machine gun. As Judge Alito succinctly put it: “There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law.”
What this means, almost certainly to my mind, is that in the next two weeks, SCOTUS is going to decide a case that will give Chevron deference a major haircut. The ability of executive agencies to make rules and carry out policy initiated by the head of the executive branch — the president — is about to be constrained.
So why does all this matter? Because DHS is one of these agencies. And that means: ICE.
If Donald Trump ascends to the presidency, he will instruct ICE to promulgate new rules regarding immigration, so as to not only tighten the border but to begin mass deportations. It’s one of his major promised initiatives.
The open-border groups will then immediately sue, just as they recently did when the Biden administration instituted its half-baked Executive Order on the Border.
The open-border groups will do it in a friendly jurisdiction, where they’ll get a friendly judge to issue an injunction freezing all new enforcement activity. That injunction will almost certainly cite the upcoming Chevron decision as its constitutional basis. Essentially, this injunction will say: “The Supreme Court has recently limited the power of executive agencies like ICE. So Donald Trump, you will have to ask Congress to pass a law.”
At this writing, even if Donald Trump wins the presidency, the control of Congress is very much up in the air. Vegas odds, in fact, have the House going to the Dems. And a Democratic house will never write such a law. They’re too afraid of their progressive left, just as Joe Biden is now.
So while Republicans have long held out for the power of the executive agencies to be curtailed: be careful what you wish for. Because this new constraint will cut both ways.
And the upcoming Chevron decision could mean that the presidency that Donald Trump seeks to inherit could be a significantly less powerful one.
Meaning: a stalemate. And the border stays open.
Thanks for the comment! I don't believe that the Texas case alters my thinking here, however. That case related to the standing of a state to sue the executive branch. The impending Chevron case has to do with whether to leave wide rule-making authority with the executive branch. I still think that the executive agencies are about to have their influence significantly impacted. But who knows? Predicting what SCOTUS does is always a crap shoot. Thanks again!
Except that the decision in US v. Texas, Et. Al. (case 22-58) SCOTUS determined that the President could set Immigration Enforcement priorities.