The Roberts Court and Executive Power

Abstract

The current Supreme Court’s jurisprudence on issues of executive power differs markedly depending on the precise type of executive power in question. Although generally taking an expansive view of presidential power, it often seeks to narrow the authority of executive branch administrative agencies, especially those engaged in regulation. This contrast creates an appearance of inconsistency: At the same time that the court is expanding presidential power, it is pulling back on administrative action and thereby denying the presidency one of its most important sources of authority. But the court’s approach is more coherent if it is understood as aimed at implementation of a conservative legal and political agenda. Moreover, by both expanding presidential powers and limiting administrative authority, the court’s decisions aggrandize judicial power at the expense of the political branches.