The Constitutionalists: Roberts and Trump

By James Taranto

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!!!” Report--ers 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-offact 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 governmentwide 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 quasijudicial 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 30day 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 socialmedia 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.