Three recent Supreme Court decisions have delivered a clear message: The administrative state has exceeded its constitutional bounds.
The Trump administration is heeding that message with the announcement of an executive order directing agencies to focus the “limited enforcement resources” of the federal government on regulations that are “squarely authorized” by Congress.
This is a necessary and legally sound step. Critics claim this is an attack on agencies, but they miss a fundamental point: The president’s foremost obligation is to the Constitution, not agency rulebooks. Enforcing regulations that violate Supreme Court precedent would be a dereliction of duty.
The Constitution vests Congress — not unelected administrators — with legislative authority. Yet, for decades, executive agencies have amassed power, issuing sweeping regulations that dictate economic policy, environmental standards and even fundamental rights without explicit congressional approval.
This administrative overreach flourished for decades under the legal doctrine known as Chevron deference, which mandated that courts defer to agencies regarding the meaning of ambiguous laws.
That era is now ending. Loper Bright Enterprises v. Raimondo struck at the heart of Chevron, limiting agencies’ ability to impose significant financial and regulatory burdens without explicit legislative authority. West Virginia v. EPA reinforced the “major questions doctrine,” reaffirming that executive agencies cannot make decisions of significant economic or political significance without a clear congressional mandate. SEC v. Jarkesy reined in agencies’ use of in-house “courts,” upholding Americans’ right to a jury trial when facing agency-imposed penalties.
These rulings aren’t theoretical exercises in legal philosophy. They have immediate implications for the executive branch. Regulations that violate these principles are unconstitutional — and the president is bound by oath not to enforce unconstitutional laws.
President Donald Trump’s Feb. 19 executive order carries out these Supreme Court rulings by ordering agency heads to identify and, with the Office of Information and Regulatory Affairs, develop a plan to rescind or modify any regulations that are not based on the best reading of a statute, implicate matters of social, political or economic significance that are not authorized by clear statutory authority, or impose significant costs on private parties that are not outweighed by public benefits, among others.
All three branches of government have a duty to assess the constitutionality of laws to ensure that their actions are in accordance with the constitutional design. Article II of the Constitution requires the president to “take Care that the Laws be faithfully executed.” Because the Constitution is the highest law that must be faithfully executed, the president should refuse to enforce a law or regulation if he has a good-faith belief that it is unconstitutional — but not when he disagrees with it merely for policy or political reasons.
When the Supreme Court holds that a law, regulation or practice violates the Constitution, it is often up to the executive branch to ensure compliance with that ruling. Refusing to enforce rules that violate the Supreme Court’s rulings prevents agencies from operating outside constitutional boundaries.
Some critics will claim that rolling back unconstitutional regulations is an attempt to weaken regulatory agencies. That may be a consequence, but these agencies were never meant to wield the kind of unchecked power they have assumed in recent decades. The administration’s actions are simply restoring constitutional order.
Of course, if Congress disagrees with these Supreme Court rulings, it has the power to change the law. It can rewrite laws to clarify agency authority or impose new regulatory frameworks. On the other hand, the president doesn’t have that power and is putting West Virginia v. EPA, Loper Bright and Jarkesy into effect by halting enforcement of regulations that run afoul of those rulings. This is not only an act of deregulation but an act of constitutional fidelity.
If we are to remain a nation governed by laws rather than a bureaucratic whim, the executive branch must respect the limits of its power. That’s what West Virginia v. EPA, Loper Bright and Jarkesy are about — guiding agencies back to their proper role of assisting the president with carrying out the laws instead of seeking to write laws, expand their authority, or assume quasi-judicial powers.
These rulings and the administration’s freeze on unconstitutional regulations are helping restore the constitutional separation of powers.
Daniel Dew is the legal policy director at the Pacific Legal Foundation. Elizabeth Slattery is the constitutional scholarship director at the foundation. They wrote this for InsideSources.com.
