The Significance
Donald Trump’s return to the presidency—and the authority to appoint federal judges—follows the U.S. Supreme Court’s June decision overturning what had been a 40-year-old doctrine of judicial deference to each federal agency’s interpretation of their regulatory authority when the governing statute was unclear.
Trump’s antipathy for regulations—and his expected wave of conservative judges—bodes ill for environmental, workplace and securities rules based on broad interpretations of statutory authority by the Environmental Protection Agency, the Federal Trade Commission, the National Labor Relations Board, the Securities and Exchange Commission and many other agencies.
Conservative jurisprudence entails narrow readings of statutes, which could lead to broad-based regulations being struck down under Trump-appointed judges. Regulated businesses have already mounted legal attacks on regulations—including EPA rules governing power plants and FTC regulations against noncompete provisions of employment contracts—as being beyond the agencies’ statutory authority.
Concerned liberal organizations have noted it was the Supreme Court’s 6-3 conservative majority that struck down Chevron deference in Loper Bright Enterprises v. Raimondo—and that, of the six justices, Trump appointed three of them: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
But the American Civil Liberties Union’s new national legal director, in a note of hope, broke from other liberal groups in saying that deference to federal agencies has not always advanced their progressive causes, especially not for the millions of immigrants caught up in the maw of the deportation system.
“Applying Chevron deference in immigration cases and deferring to the Board of Immigration Appeals is like deferring to the prosecution on the meaning of criminal law,” said Cecillia Wang. “The Loper Bright decision represents an opportunity to hit the reset button in places where courts have inappropriately deferred to agency interpretations of the laws that Congress enacted.”
The Information
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The Forecast
The next two months and the following two years will likely be mirror images in the U.S. Senate.
In its lame-duck session,the Democratic-led Senate will rush to confirm Biden’s pending judicial nominees followed by the Republican-run chamber making sure Trump’s nominees take their seats on the bench. The minority party in both instances will be largely powerless to stop party-line confirmations.
A spokesperson for Senate Judiciary Committee Chair Richard Durbin, D-Illinois, said confirming Biden’s nominees is a priority.
“Senate Democrats are in a strong position regarding judicial confirmations as we approach the lame-duck session given that we have a number of nominees on the floor ready for a vote and others still moving through committee.” the spokesperson said. “Chair Durbin aims to confirm every possible nominee before the end of this Congress.”
But Arnold & Porter Kaye Scholer partner John P. Elwood, who heads the firm’s appellate and Supreme Court practice, said it is historically rare for a lame-duck Senate to confirm judicial nominees.
Exceptions include the confirmation of Stephen Breyer to the U.S. Court of Appeals for the First Circuit after President Jimmy Carter lost his reelection fight in 1980 and the 14 Trump judicial nominees confirmed after he lost the 2020 election to Biden.
Nevertheless, Elwood said he expects the U.S. Senate to confirm a decent number of Biden’s judicial nominees while Democrats have control of the chamber.
“It is largely a political question on how much Republicans can slow-roll them and whether the votes are there,” Elwood said.
