Agency Weakness, Presidential Strength
Recent Supreme Court decisions have weakened agency discretion, but the displaced power may strengthen presidential control over administration, enforcement, and regulatory strategy.
April 30, 2025
Recent Supreme Court decisions have narrowed agency authority, but they have also raised a second question: where does that authority go next?
Over the last year, the Supreme Court has cut back several forms of agency authority, including interpretive deference, in-house adjudication, limitations defenses, and open-ended permit conditions. In Loper Bright, the Court held that the Administrative Procedure Act requires courts to exercise independent judgment when deciding whether an agency has acted within its statutory authority, and that courts may not defer to an agency’s interpretation of law simply because a statute is ambiguous.1 In Jarkesy, the Court held that the SEC must provide a jury trial when it seeks civil penalties for securities fraud.2 In Corner Post, the Court held that an APA claim accrues when the plaintiff is injured by final agency action, which makes older rules newly vulnerable to later-injured plaintiffs.3 In San Francisco v. EPA, decided on March 4, 2025, the Court held that the Clean Water Act does not authorize EPA to include “end-result” provisions in NPDES permits.4
Those cases are often described as a loss for the administrative state, and that description is accurate as far as it goes. They reduce agencies’ ability to act as independent legal interpreters, to seek certain civil penalties through in-house adjudication, to rely on the age of a rule as a practical shield against later challenge, and to use open-ended permit terms as a substitute for concrete regulatory commands. The harder question is where that displaced authority goes.
A Reuters Legal News attorney-analysis piece by Skadden lawyers Shay Dvoretzky, Parker Rider-Longmaid, and Emily Kennedy put the question directly on April 24, 2025: “Will agencies’ weaknesses become a source of presidential strength?”5 Their answer was careful. In some settings, power shifts to courts; in others, it returns to Congress; in still others, limits on agency authority may give the President more practical control over agencies through appointments, removals, spending decisions, White House review, and enforcement priorities.5
The Trump Administration has already begun testing that theory. On February 18, 2025, Executive Order 14215 declared a policy of presidential supervision and control over the executive branch, including independent regulatory agencies. The order requires that proposed and final significant regulatory actions from independent regulatory agencies undergo OIRA review before publication in the Federal Register, and it states that the President’s and the Attorney General’s legal interpretations govern executive-branch employees in performing their official duties.6
The next day, Executive Order 14219 directed agencies to review regulations for consistency with law and administration policy. The order told agencies to identify several classes of regulations, including unconstitutional regulations, regulations based on unlawful delegations, regulations based on readings other than the best reading of the statute, regulations involving major social, political, or economic questions without clear statutory authorization, regulations imposing significant costs that are not outweighed by public benefits, regulations harming the national interest by significantly and unjustifiably impeding listed policy objectives, and regulations imposing undue burdens on small businesses while impeding private enterprise and entrepreneurship.
It also directed agencies, subject to legal obligations, public safety, and the national interest, to generally deprioritize enforcement of regulations based on something other than the best reading of a statute or beyond constitutional authority.7
On April 9, 2025, a presidential memorandum directed agencies to repeal regulations that clearly exceed agency statutory authority or are otherwise unlawful. The memorandum instructed agencies to prioritize review under ten Supreme Court decisions, including Loper Bright, West Virginia v. EPA, SEC v. Jarkesy, Michigan v. EPA, Sackett v. EPA, and Ohio v. EPA. It also directed agencies to finalize repeals without notice and comment where the APA’s good-cause exception applies.8
For regulated companies, this creates a different compliance problem. Businesses still have to watch statutes, regulations, guidance, enforcement actions, and litigation, but they now also have to watch presidential control with the same discipline. A new administration can change an agency’s leadership, legal theory, enforcement posture, budget execution, and regulatory agenda far faster than Congress can rewrite a statute.
The same shift also affects competition. When rules are unsettled, the best-positioned incumbents usually move first because they already have the lawyers, lobbyists, compliance teams, and agency relationships needed to challenge unfavorable rules, defend favorable ones, and shape the next regulatory regime. Smaller competitors may benefit from a less aggressive administrative state, although they also face greater uncertainty and have fewer tools to manage it.
Legal uncertainty usually favors the people who can move before everyone else understands the new rules, and history gives that point some shape. In the nineteenth century, fights over annexation, public land, railroads, mineral rights, tariffs, and corporate charters often rewarded those who already had capital, counsel, and political access. Administrative law is a different field, but the same timing advantage can arise when regulatory authority is being reassigned, because incumbents who understand the shift first can help define the next regime before smaller competitors know which agency, court, or political actor they need to answer to.
The risk, then, is that courts may reduce agency discretion while presidents gain faster control over the machinery of administration. In that world, regulatory power becomes more electoral and less technocratic. That may improve democratic accountability in some areas, but it also means policy can swing faster, companies will plan around that speed, and lawyers will be paid to anticipate it.
The attorneys best positioned for the next decade will read doctrine, agency structure, presidential control, litigation risk, and business incentives together. Administrative law now sits close to the center of American economic power.
The better question, for lawyers and clients, is where agency power goes next and who will be ready when it moves.