In 2016, a colleague, Donald F. McGahn II, then a key legal adviser to presidential candidate Donald J. Trump, delivered an appeals court ruling that eloquently and forcefully reflected many of what McGahn saw as the dangers of an out-of-control federal bureaucracy.
The Denver appeals court opinion, delivered by the little-known Justice Neil M. Gorsuch, suggested that it might be time for federal courts to tackle the “behemoth” of longstanding precedent that grants substantial regulatory power to federal officials.
A month later, McGahn placed Judge Gorsuch on Trump’s list of possible Supreme Court nominees, should he be elected.
Four months later, he became the first Supreme Court nominee by President Trump.
And this past week, Justice Gorsuch wrote on behalf of the conservative majority on the Supreme Court that ensured that the monster was killed.
While the conservative-dominated court has been focused on its sweeping decisions to roll back abortion rights and significantly expand presidential immunity, that was never the primary goal of the architects of the effort to shift the judiciary to the right.
For those who led the effort to install Justice Gorsuch and two other conservatives on the court during the Trump administration, a series of sweeping Supreme Court decisions this year curbing the power of federal agencies was the real victory. Their longtime target, the so-called administrative state, has struck back with the overturning of the 40-year-old Chevron Doctrine and a flurry of other decisions aimed at shrinking the reach of the federal government — just as they intended.
“None of this was an accident,” Mr. McGahn, a partner at Jones Day, said in an interview about the court’s landmark rulings on administrative law — an obscure area but a cornerstone of his campaign to get lawyers skeptical of federal power onto the court. “It was a way to rein in the runaway bureaucracy and appoint judges who would actually read the law as it was written.”
Limiting the power of federal officials has long been a goal of members of the Federalist Society, the conservative group seen as a breeding ground for the type of judges McGahn and others sought as they sought to quickly pack the courts with conservative jurists after Trump’s election.
“Dismantling the administrative state and empowering people who are actually elected to make decisions has been the motivating force” for nearly every “Federalist Society-type advocate,” Sen. Mitch McConnell, the Kentucky Republican and minority leader, said in an interview.
Mr. McConnell led the Senate’s judicial confirmation effort as majority leader, starting when he blocked President Barack Obama from filling a Supreme Court vacancy in 2016. He then worked closely with Mr. McGahn after Mr. Trump was elected to shepherd dozens of his judicial nominees into the judiciary.
“I think the left thought we were only talking about Roe v. Wade,” Mr. McConnell said. “I honestly don’t even remember it coming up. This was the unifying issue,” he said of the effort to rein in federal agencies.
Mr. McGahn first became wary of the agency’s regulatory power during his own tenure on the Federal Election Commission. When he became White House counsel for Mr. Trump, he played a central role in vetting Supreme Court nominees and recommending them to the new president.
He sought out potential candidates who had demonstrated a passion for challenging the overreach of federal agencies and backed this up with strong legal arguments and decisions.
“It’s not enough to say the right things in public speeches,” Mr. McGahn said in a November 2017 speech to the Federalist Society, laying out his strategy for what had become known as deconstructing the administrative state. “Judges have to apply those principles in real cases.”
Judge Gorsuch had demonstrated his thinking in the 2016 ruling. Brett Kavanaugh, a former White House official who sits on the U.S. Court of Appeals for the District of Columbia Circuit, had what Mr. McGahn saw as a long paperwork that put him at the “vanguard of limiting agency power,” which ultimately earned him a spot on Trump’s Supreme Court nominee list.
Amy Coney Barrett, a law professor at Notre Dame who was appointed to the U.S. Court of Appeals for the Seventh Circuit in 2017, did not have the same legal background as the other two, but McGahn liked what he heard during interviews for the appeals court position.
“She spoke highly of the work of Gorsuch and Kavanaugh,” he said. “These guys are cut from the same cloth.”
All three were eventually confirmed to the Supreme Court over the vocal objections of Democrats, providing the critical mass of votes for the series of rulings that will significantly change the way agencies exercise power. They will also put new pressure on Congress to write laws with less wiggle room for how agencies interpret and enforce them.
In addition to the landmark ruling that overturned the Chevron Doctrine, which requires courts to defer to federal agencies’ interpretations of laws, the justices also blocked the EPA from enforcing a rule meant to protect downwind states from pollution from neighboring states, a decision with broad implications for other environmental regulations. They also required the Securities and Exchange Commission to try fraud cases in federal courts rather than in internal tribunals, another consequential change.
On Monday, the Supreme Court delivered a major blow to agency power with another ideologically divisive ruling, ruling that a six-year period for challenging agency regulations should begin when the regulation affects a company, rather than six years from the time the regulation is enacted.
“I think this is an issue that has the potential in the long run to realign power between those who are actually elected and those who do what they want,” Mr. McConnell said, referring to lawmakers versus federal regulators.
The series of anti-regulatory rulings has alarmed both liberal members of the court and Democrats, who fear they could undo decades of work by government agencies to protect the health and well-being of Americans.
In a dissenting opinion, Justice Katanji Brown Jackson warned that the decision could unleash “a tsunami of litigation against agencies” and “had the potential to devastate the functioning of the federal government.”
Senator Chuck Schumer, the New York Democrat and majority leader, said the justices had “once again sided with powerful special interests and giant corporations against the middle class and American families. Their breakneck rush to overturn 40 years of precedent and impose their own radical views is appalling.”
But Mr McGahn said the rulings should reset the federal regulatory regime and put power back in the legislature’s proper place.
“This puts the reins back in Congress,” he said. “It also gives them a real responsibility, that they have to start doing their job and legislate with some specificity.”
