Supreme Court Signals Its Interest in Limiting the President ’s Leeway for Irrational Policymaking

William YeatmanThe 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 donot 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 Trumpdeclared a bogus “national emergency” to unlock funding for a border wall. Before that, Trumpimposed 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 probl...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs