What Would A Second Trump Term Look Like? Ask The Supreme Court.

What Republicans can’t do through the courts they can do through the presidency and Congress — if they have that power. And they seem inclined to use it.

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This week brought some clarity to the presidential race. Or maybe I should say “more” clarity, because it’s not like there was a whole lot of ambiguity when it comes to who will be the 2024 Republican presidential nominee.

Donald Trump’s easy win in Monday’s Iowa caucuses confirmed what polls have said for more than a year now: The party’s voters want him back on top of the ticket and, next year, back in the White House.

And just as there’s not much mystery about whether Trump will be the GOP’s presidential candidate, there should be no mystery at all about what a Trump win would mean for America. Trump himself made that clear (again) when he proclaimed in ALL CAPS on his Truth Social site on Thursday that presidents should have total immunity from criminal charges for any actions they take while serving in office. In other words, the president is literally above the law.

The threat Trump poses to the norms of how American democracy should work is arguably the most important issue in this year’s presidential election. With any luck, voters will have that challenge foremost in their minds when they cast ballots in November.

But it’s not the only issue. Electing Trump would also have implications for more practical and material concerns. Will there be money to finance vital programs when the biggest item on the domestic agenda is big tax cuts for the wealthy? Will factories be safe for workers when pro-business ideologues are running the Labor Department? Will health care become more unaffordable under a president still determined to repeal Obamacare?

Going forward, there’s a real danger these everyday, bread-and-butter issues won’t get the attention they deserve ― partly because the big, existential questions about American democracy and law loom so large, and partly because Trump’s sporadic, frequently incoherent statements about policy make it hard to pin down what he thinks or would do.

That’s why it’s worth taking a closer look at yet another news development this week ― one that took place far away from the campaign trail, at the U.S. Supreme Court.

I’m talking about the oral arguments in a pair of cases about what’s known as “Chevron deference,” which sounds obscure but has all kinds of implications for the way our government functions.

The Chevron Doctrine ― And Dispute

HuffPost’s Paul Blumenthal, who has been following the case, wrote about the oral arguments. The short version is that under the Chevron doctrine, federal agencies have latitude to interpret the meaning of ambiguous laws passed by Congress as long as those interpretations are reasonable. The lawsuits before the court this week seek to reverse that understanding by curtailing or eliminating this leeway as part of a broader effort to limit the power of federal agencies.

What does this all mean in practice? To take a not-very-hypothetical example, Congress has passed multiple statutes that call upon the Environmental Protection Agency to make rules to limit pollution without getting into every detail of what counts as pollution and what doesn’t. Under the Chevron doctrine, the Supreme Court has long recognized that the EPA gets to specify those details as long as they seem consistent with the law’s overall guidelines and intent.

The doctrine (and the Chevron deference name) comes from a 1984 case called Chevron U.S.A. Inc. v. Natural Resources Defense Council, in which environmentalists (led by the Natural Resources Defense Council) sued over their belief that the famously pro-business, anti-regulatory Reagan administration was making decisions inconsistent with the intent and language of the Clean Air Act.

The Supreme Court at the time rejected that lawsuit, arguing that Reagan’s EPA was simply using authority over details the Clean Air Act had delegated to the agency — in other words, that the agency had the right to decide how to interpret the law. And at the time, conservatives were thrilled about the decision, which bypassed the then-liberal court system to give authority to the then-conservative agencies. But in the years since, as the balance of power has reversed, conservatives have come to see the Chevron doctrine very differently, arguing that it gives too much power to federal agencies.

The conservatives who now represent a 6-3 majority on the court have already issued a series of decisions limiting the power of agencies for the same basic reason, including rulings limiting the government’s ability to set workplace safety regulations during the pandemic and, more recently, a key 2022 decision that effectively requires clearer authorization from Congress before agencies can issue sweeping environmental rules.

Going one step further and actually overturning Chevron could have a massive impact, as Blumenthal laid out in his write-up:

If the court overturns its ruling in Chevron, agencies would be more reticent to issue regulations where laws passed by Congress are ambiguous. It would also open the door to a flood of litigation over existing regulations. And since Congress lacks the institutional capacity and the calendar space to pass legislation authorizing every agency rule and regulation written under ambiguous legislative language, the courts would be the final arbiter on each regulatory decision.

Much of the commentary since oral argument has focused on that last part ― i.e., the way overturning Chevron would shift power to judges who not only lack the expertise of agency scientists and lawyers but who are also, thanks to lifetime tenure, unaccountable to the public once they are on the bench.

But on a more practical level, it makes the power to appoint judges even more important ― and the potential effect of a Trump presidency even more stark. The sheer volume of litigation over rules and regulation would likely mean that most cases would never even get to the Supreme Court. They’d be handled in lower federal courts, where conservative judges (many appointed by Trump) already serving have been busy issuing rulings blocking or invalidating rules on everything from access to abortion medication to minimum wage for contractors.

Four more years of Trump would mean four more years of Trump appointments filling the bench ― and, if the Chevron doctrine goes down, with even more power over rules and regulations than before.

Just how much power remains an open question because, as always, it’s impossible to know exactly how the Supreme Court will rule on this case. The tenor of questioning during oral argument suggests at least five and possibly all six conservative justices want to limit Chevron deference, though it wouldn’t be a shock if Justice Amy Coney Barrett and Chief Justice John Roberts want to stop short of eliminating it entirely.

But whatever the final ruling on Chevron, the sympathy for the lawsuit among Trump appointees to the bench reveals a lot about the GOP agenda. Republicans and their allies are still trying to roll back environmental and consumer regulations, just as they are still trying to tilt the tax code toward the wealthy and downsize the safety net.

What they can’t do through the courts they can do through the presidency and Congress — if they have that power. And they seem inclined to use it. That’s why, for example, House Republicans keep demanding huge spending cuts as a condition of keeping the government open. It’s also why Trump, after all these years, is still talking about Obamacare repeal.

Maybe voters want these things. Maybe they don’t. Either way, they should know they are real possibilities alongside all the other implications of giving Trump four more years as president.

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