The
Constitutionalists: John Roberts and Donald Trump
Many of the president’s actions
align with the chief justice’s efforts to restore the U.S. government’s
structural integrity.
By James Taranto (Wall Street
Journal) March 21, 2025
Nobody
ever accused Donald Trump of being high-minded, and I decline the opportunity
to be the first to do so. But many of his early second-term actions serve an
elevated purpose: restoring constitutional integrity and democratic
accountability to the U.S. government. In this effort Mr. Trump is working in
resonance, although not in concert, with Chief Justice John Roberts. Their
distinct leadership cadences converge in at least four areas of policy and law:
regulation, management of the federal bureaucracy, civil rights and freedom of
expression.
That isn’t
to say they always play the same tune. In a characteristically bumptious Truth
Social post Tuesday, the president asserted that James Boasberg, a “Radical
Left Lunatic of a Judge” who issued a temporary restraining order against Mr.
Trump, “should be IMPEACHED!!!” Reporters who sought comment from the Supreme
Court received an email with a characteristically temperate statement from the
chief justice: “For more than two centuries, it has been established that
impeachment is not an appropriate response to disagreement concerning a
judicial decision. The normal appellate review process exists for that
purpose.”
The public
heard a thunderously discordant note, but it came from a news-media
synthesizer: Virtually every headline was some variation of “Roberts Rebukes
Trump.” In reality, the press was playing “Let’s You and Him Fight,” and both
men declined to join the histrionics. The chief justice didn’t blame, scold or
reprimand the president; he offered a matter-of-fact comment about history,
political norms and judicial procedures. Mr. Trump later brushed aside a query
from Fox’s Laura Ingraham: “Well, he didn’t mention my name in the statement. I
just saw it quickly.”
Mr.
Trump’s detractors fault him for self-aggrandizement. That assessment is
obviously accurate, but it carries more force as a dramatic critique than a
legal one. As the chief justice put it in Trump v. U.S. (2024), “The
President ‘occupies a unique position in the constitutional scheme,’ as ‘the
only person who alone composes a branch of government.’ ” During his term, Mr.
Trump is the most important man in the American constitutional structure. It
isn’t bragging if it’s true.
Yet
Article II also strictly limits his authority. It provides only that “the
executive Power shall be vested” in the president. He gives effect to the law,
but Congress (Article I) writes it and the judiciary (Article III) provides the
authoritative reading. Mr. Trump affirmed this balance in a Feb. 19 executive
order: “Ending Federal overreach and restoring the constitutional separation of
powers is a priority of my Administration.”
The order
directs agency heads to review all regulations and identify several categories
of them for rescission, modification or nonenforcement. Among the targeted
rules are those “that are based on anything other than the best reading of the
underlying statutory authority or prohibition” and those “that implicate
matters of social, political, or economic significance [and] are not authorized
by clear statutory authority.”
This is
the opposite of a power grab. Mr. Trump is asserting control of the executive
branch and commanding it to bow to Congress by invalidating regulations that
lawmakers never authorized. In doing so he amplifies the authority the Supreme
Court exerted in two of Chief Justice Roberts’s decisions: Loper Bright v.
Raimondo (2024) and West Virginia v. Environmental Protection Agency
(2022).
In Loper
Bright, the justices overturned a 1984 precedent and reclaimed the power to
say what the law is, which the court had improvidently relinquished to the
executive branch. In Chevron v. NRDC, environmentalists challenged the easing
of an emissions regulation. The justices sided with the Reagan EPA and
haphazardly mandated that federal judges defer anytime an agency administrator
made a “reasonable interpretation” of an unclear statute. That effectively
turned appointed bureaucrats—and, in practice, their politically unaccountable
subordinates—into both lawmakers and judges.
In West
Virginia, the court followed the legal lead of the first Trump
administration. The EPA in 2019 repealed the Obama-era Clean Power Plan on
grounds that it violated the “major questions doctrine,” which holds that
agencies can’t make “decisions of vast economic and political significance”
without clear congressional authorization. After the Biden EPA reinstated the
plan, the justices struck it down and embraced the major-questions doctrine.
West
Virginia and Loper
Bright, both decided during Joe Biden’s presidency, had no immediate effect
beyond the particular regulations under challenge. A passage from Trump, the
2024 presidential immunity decision, explains why. Quoting Alexander Hamilton
in Federalist No. 70, the chief justice observed that the Founders
thought “the purpose of a ‘vigorous’ and ‘energetic’ Executive . . . was to
ensure ‘good’ government,’ for a ‘feeble executive implies a feeble execution
of the government.’ ”
Because
courts work deliberately and address only “cases and controversies,” they are
incapable of overcoming bureaucratic and political inertia. Lawmakers have a
collective-action problem. They often find it convenient to dodge
accountability by leaving controversial decisions to unelected officials in the
other branches. It remains to be seen if Mr. Trump will succeed in giving Loper
and West Virginia government-wide effect, but it is clear that only an
energetic president can do so.
Chevron
deference didn’t create extraconstitutional federal power centers; it merely
stripped away a judicial check on them. The main presidential check has been
absent for 90 years. In Humphrey’s Executor v. U.S. (1935), the high
court upheld a provision of the Federal Trade Commission Act that prohibits the
president from firing an FTC commissioner without cause. Although the FTC is
nominally in the executive branch, the court found that Congress intended for it
to be “a body of experts” whose “duties are neither political nor executive,
but predominantly quasi-judicial and quasi-legislative.”
The
Constitution says nothing about government by “experts,” and those “quasis” make a mockery of the structural separation
of powers. But constitutional limits fell out of fashion in the Progressive
era. “The Constitution was not made to fit us like a straitjacket,” Woodrow
Wilson said in a 1904 speech. “In its elasticity lies its chief greatness.” As
president he often donned his spandex Constitution, as when he signed the FTC
Act of 1914.
The
Roberts court has chipped away at Humphrey’s Executor. Seila Law v.
Consumer Financial Protection Bureau (2020) struck down a provision that
barred the president from firing the CFPB’s director without cause. The chief
justice’s opinion limited the application of Humphrey’s Executor to
multimember commissions like the FTC.
Mr. Trump
is setting up a challenge to that remaining constraint on his removal power. On
Jan. 27 he fired Gwynne Wilcox, a member of the National Labor Relations Board.
On March 6 a district judge, faithfully applying Humphrey’s Executor,
ordered Ms. Wilcox’s reinstatement, and the White House filed a notice of
appeal. Trump v. Wilcox should reach the Supreme Court in the next year
or two.
The
justices have also asserted the judiciary’s prerogatives as against
“quasi-judicial” agencies. In Axon v. FTC (2023), they ruled that
plaintiffs challenging an administrative enforcement action on structural
constitutional grounds could go straight to court without having to exhaust
“administrative remedies.” In Securities and Exchange Commission v. Jarkesy (2024), they held that defendants in a civil
securities-fraud case are entitled to a jury trial—that the SEC violated the
Seventh Amendment by playing both prosecutor and judge. (The majority opinion
in Jarkesy was written by the chief justice,
in Axon by Justice Elena Kagan for a unanimous court.)
The
president, meantime, is testing a variety of limits on his power to manage the
federal bureaucracy. A Jan. 20 executive order reclassified many federal
personnel as “policy/career” employees, who are “required to faithfully
implement administration policies” on pain of dismissal. Mr. Trump fired
inspectors general—congressional overseers embedded in executive departments
and agencies—without giving lawmakers the statutorily required 30-day notice.
The Department of Government Efficiency orchestrated the firing of thousands of
provisional employees and offered buyouts to permanent ones.
These
measures have met resistance in the courts as well as from extraconstitutional
power centers such as public-employee unions and the quasi-judicial Merit
Systems Protection Board. The White House will lose some legal battles—and
already has—but its appeals will arrive at a Supreme Court more committed to
the structural separation of powers than it has been in living memory.
Americans
tend to take the Constitution personally, thinking more about their rights than
the separation of powers. Here too Mr. Trump has been vigorous in restoring the
constitutional order, and he publicly acknowledged his debt to the court in his
March 4 address to Congress. “We’ve ended the tyranny of so-called diversity,
equity and inclusion policies all across the entire federal government and
indeed the private sector and our military,” he said. “And the Supreme Court,
in a brave and very powerful decision, has allowed us to do so. Thank you.”
Mr. Trump
meant Students for Fair Admissions v. Harvard (2023), a Roberts decision
cleaning up a precedent that was as carelessly wrought and as consequential as
Chevron: Justice Lewis Powell’s controlling opinion in University of
California v. Bakke (1978).
Powell
meant to carve out a narrow exception to the Civil Rights Act’s ban on racial
discrimination by allowing preferences in college admissions for the sole
purpose of “obtaining the educational benefits that flow from an ethnically
diverse student body.” The effect over decades was to turn “diversity” into an
all-purpose euphemism and justification for pervasive discrimination, including
not only preferences for minorities but segregated facilities and “affinity
groups” as well as training sessions that created a hostile environment for
groups stigmatized as “privileged,” including whites, men, Christians,
heterosexuals and lately Jews and Asians. These pernicious practices eventually
spread beyond campus into workplaces.
Fair
Admissions didn’t explicitly overturn Grutter v. Bollinger (2003), in
which the court formally enshrined Powell’s lone opinion as binding precedent.
But it tightened the logic enough to close the “diversity” loophole that
enabled systemic violations of the right to equal protection under the 14th
Amendment. As with Loper Bright and West Virginia, the energy of
Mr. Trump’s executive order accelerates the ruling’s practical effect.
On free
speech, by contrast, Mr. Trump acted where the court held back. In Murthy v.
Missouri (2024), the chief justice was part of a 6-3 majority that shut
down a lawsuit challenging the Biden administration’s jawboning of social-media
companies to censor dissent about Covid, the 2020 election and other topics.
Justice Amy Coney Barrett wrote for the court that the plaintiffs “failed to
establish an injury that is sufficiently ‘concrete and particularized’ ” and
therefore lacked standing to sue.
Justice
Barrett and her colleagues seemed to regard the case as asking too much of the
courts to resolve. Her opinion emphasized the messy factual record, which made
it difficult to determine whether the companies, which weren’t parties to the
lawsuit, acted on their own or buckled under government pressure. But on
Inauguration Day Mr. Trump made his own findings clear in an executive order.
“Over the
last 4 years, the previous administration trampled free speech rights by
censoring Americans’ speech on online platforms, often by exerting substantial
coercive pressure on third parties, such as social media companies, to
moderate, deplatform, or otherwise suppress speech that the Federal Government
did not approve,” he declared. Then he decreed a stop: “Government censorship
of speech is intolerable in a free society.”
Some
journalists and civil libertarians accused Mr. Trump of violating press freedom
when he excluded the Associated Press from the White House reporting pool over
bias and dishonesty in its influential stylebook. As I have argued in these
pages, the critics are mistaken: Access to the White House’s inner chambers is
obviously at the president’s sole discretion.
Further,
Mr. Trump’s reassertion of control over press access is consistent with the
broader effort to restore the government’s structural integrity and democratic
accountability. The day after a district judge denied the AP’s petition for a
temporary restraining order, the president stripped the White House
Correspondents Association of its authority to determine the press pool’s
members.
Previous
presidents gave the AP and the WHCA privileged status, which they now seek to
formalize by claiming the Constitution protects it. A judicial victory would
turn these private organizations into permanent extraconstitutional power
centers. It is a perversion to suggest that the First Amendment can compel the
president to submit to the authority of media cartels simply because they won
his predecessors’ favor.
Some
commentators have speculated that the prospect of being seen as in alignment
with Mr. Trump may lead a fainthearted Chief Justice Roberts to cut
constitutional corners. The premise seems invidious, and the chief justice’s
Tuesday statement emphasizing “the normal appellate review process” would be
hollow if it didn’t imply a commitment to give every litigant, including the
president and the officials who work for him, a fair hearing on the legal
merits.
Anyway,
the court will have plenty of occasions for principled rulings against Mr.
Trump and his administration. His executive order purporting to end birthright
citizenship is contrary to the plainest reading of the 14th Amendment. His
tariffs likely exceed his authority under the International Emergency Economic
Powers Act and thereby encroach on Congress’s taxing power. And the whole point
of Loper Bright is that an executive agency’s “best reading” of a statute is
subject to judicial review.
A feeble
president is no protection against overreach by the sprawling executive branch.
The Biden administration persistently violated the Constitution and frequently
was reined in by the Supreme Court. A strong president is a menace to the
Constitution if he is determined to break its constraints. “The President is at
liberty, both in law and conscience, to be as big a man as he can,” Wilson
wrote in Constitutional Government in the United States (1908).
Mr. Trump
believes in a strong presidency, and in important ways he is using it to bring
the government back in tune with the Constitution. That really is big of him.
Mr.
Taranto is the Journal’s editorial features editor.