Conservative judges have become increasingly skeptical of the “administrative state.” They are giving executive-branch agencies less deference when those agencies interpret the laws that govern them. They are suggesting that they may act to stop Congress from granting these agencies so much discretion that they practically become lawmakers. President Trump’s appointees to the federal courts have vastly strengthened this current of legal thought.
It is a current that could well sweep aside his new executive order on social media. That order directs agencies to act on an interpretation of the law that is at variance with prior judicial interpretations of it and, arguably, with the text of the law. It purports to discover, hiding in the text of an old law, a power these agencies had not previously been thought to have.
It seems, in other words, as though Trump is directing agencies to take exactly the kind of action conservative judges are beginning to combat.
Note that this potential legal vulnerability of Trump’s order is independent of the soundness of his policy goals. Maybe the law on social-media companies’ liabilities should be changed. The debate over that question raises separate policy and constitutional issues. The separation-of-powers problem is that Congress hasn’t changed the law, and the president is trying to make a policy change through creative reinterpretation of it. Justice Gorsuch and his colleagues may have something to say about that.
Update: See also Adam White’s post, which clears up a lot of misconceptions about the president’s order.