An Age of Statutes or an Age of Executive Orders? Conflicting Judicial and Presidential Visions of Policymaking

Two decades ago, then-Professor Elena Kagan hailed the era of presidential administration in which Presidents would launch major policy initiatives within the executive branch and end run congressional gridlocks. Since then, the President’s role in the regulatory state has snowballed. In his second term, President Donald Trump has used this authority to the utmost in a quantum leap in presidential administration. Paradoxically, the same Justices who have championed the unitary executive have created roadblocks to presidential policymaking.

Overruling the Chevron doctrine, the Court has sought to cabin the role of agencies, and thus the newly supreme President, in statutory administration. The Court also articulated the major questions doctrine, which has been used almost exclusively to strike down agency actions taken under presidential directives. This Article argues that, despite the Court’s celebration of the unitary executive, it remains wedded to a view of policymaking that is at odds with that of recent presidents, most notably President Trump. That view seeks to center Congress, not the President, as the primary source of domestic policy.

In contrast, recent presidents seem to view congressional action as only a launchpad for their own policy initiatives. A collision between these perspectives seems inevitable.