From <em>Chadha </em>to <em>Loper Bright: </em>The Supreme Court, Separation of Powers, and the Politics of Formalism

In recent years, the United States Supreme Court has issued several decisions that limit judicial deference to administrative agencies. This has been accomplished by developing the “major questions doctrine” and overruling the long-standing Chevron doctrine in a series of 6-3 decisions in which the justices were divided along ideological lines. Commentary and scholarship on this trend have focused on what is being described as “new” formalism, but we argue that these cases should be viewed as more of an extension of the Court's formalism jurisprudence in legislative process separation of powers disputes from the 1980s and 1990s. However, the Court majority in the separation of powers cases of the ‘80s and ‘90s were cross-ideological and cross-partisan, while the current cases applying a formalist approach are marked by a clear ideological and partisan divide amongst the justices.

In this paper we argue that compared to Chevron, the formalist approach taken by the Court in cases like West Virginia v. EPA (2022) and Loper Bright v. Raimondo (2024), are more consistent with the Court’s jurisprudence in earlier separation of powers cases, like INS v. Chadha (1982), Bowsher v. Synar (1986), and Clinton v. New York (1998). Additionally, we illustrate how divisions over the formalist-functionalist approaches to separation of powers cases have evolved from being non-ideological and bipartisan to becoming rooted in the ideological divide on the Court. But the application of the formalist approach in separation of powers disputes also raises questions when the current majority appears to favor functionalist or deferential reasoning in presidential authority, separation of powers cases.