Possible Doctrinal Responses to Ping‐​Pong Policymaking

This article appeared in Yale Journal on Regulation on November 24, 2020.

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In today’s government, presidents are the primary policymakers, due to their management of the administrative state. On January 20th, therefore, rules affecting almost every aspect of American life will pivot 180 degrees, as the White House changes hands from a Republican to a Democrat administration.

Consider the current whipsaw in our nation’s capital. The Trump administration is racing to finish a flurry of “midnight rules.” Simultaneously, Biden’s transition teams are planning how to reverse these midnight rules—and everything else promulgated over the last four years.

The same thing occurred four years ago, when Trump succeeded Obama. And eight years before that, when Obama assumed the reins from Bush. And eight years before that, when Bush took over from Clinton.

Keep in mind, these presidents are achieving their domestic policy agendas by relying on existing statutory authorities. Since the dawn of the administrative state, Congress has drafted enabling acts in capacious terms, leaving agencies to fill in the details. The upshot is that these delegations provide enough leeway for successive presidents to achieve opposite policies by “interpreting” the same statutory text.

In this manner, many major regulations have ping‐​ponged back and forth. The policy swings are especially pronounced in executive agencies subject to direct presidential management.

Take, for example, the definition of the “waters of the U.S.” under the Clean Water Act , a crucial determination within environmental law. From Bush to Obama to Trump, the government has adopted alternating interpretations. Soon, it’s likely the Biden administration will continue the pattern. There are many other examples of environmental policy caught in the spin cycle, including climate change rules for stationary sources, fuel efficiency standards, and methane rules for the oil and gas industry.

It’s the same for federal policy in labor, healthcare, and education—back and forth they go, from one ideological gloss to the other. Usually, the changes have nothing to do with any advances in agency expertise, or from new facts being brought to bear. Instead, these rules alternate because the White House changes party hands. It’s pure politics.

Here’s our question: At some point, do these endless flip‐​flops become per se unreasonable?

Under APA § 706(2)(A), courts must “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Random House defines “capricious” as meaning “erratic.” Surely, “erratic” is an apt description for the ping‐​pong policymaking that characterizes our present epoch of “presidential administration”?

To be clear, we’re not advocating for courts to prohibit agencies from changing course. By rendering regulation more responsive and accountable, politics can be a virtue in administrative law. Nevertheless, at some point, more harm than good is done by these abrupt shifts in domestic policy every four to eight years. With each wholesale pivot, the instability worsens.

Arguably, courts already have the doctrinal means to moderate these swings. In recent years, for example, the Supreme Court has embraced “reliance interests” within its framework for reviewing agency action. Such scrutiny seems well suited to policing ping pong policymaking.

Ditto for the “major questions” doctrine. After all, the social and economic effects of any given administrative action are amplified when presidents—on behalf their respective parties—stake out polar‐​opposite positions on a given issue. Maybe the effects are amplified so much so that they become a “major question” meriting a jaundiced judicial eye.

Rather than resorting to existing jurisprudence, the Supreme Court might update its precedent. Here, we’re thinking of FCC v. Fox Studios. In that famous case, the Court refused to require heightened explanatory thresholds whenever an agency faces judicial review of an about‐​face in administrative policy. Of course, the FCC is an independent agency. Perhaps the Court would rethink its holding if it were presented with a controversy involving a political pivot at an executive agency. Such a presumption—requiring enhanced justification whenever the agency changes its mind—would dovetail with the Court’s recent focus on “reliance interests.” That is, the Court could require flip‐​flopping agencies to elaborate on how reliance interests were affected and, ultimately, to minimize any deleterious effects.

Ideally, Congress would reassert itself in administrative policymaking by clarifying the statutes that otherwise confer impossibly broad delegations of power, and thereby limit the potential for these policy swings. In the contemporary Congress, however, political party trumps institutional pride. As a result, half of Congress loses interest in reining in the administrative state whenever “their guy” occupies the Oval Office. With Congress sidelined, the only branch left to put a check on the erratic swerving of the executive branch is the Judiciary. If not now, then a few years down the road, when the administrative state performs its next wholesale shift.