Let’s give credit where credit is due: The Trump administration is reintroducing constitutional balance to regulatory policymaking.
His team is doing the yeoman’s work that Congress and the courts have avoided for too long. What makes these developments even more remarkable is that the president is acting contrary to his institutional interests.
To be sure, the administration is imperfect on this score. For example, President Trump strained our constitutional structure when he declared an “emergency” to fund a border wall in order to circumvent Congress’s exclusive “power of the purse.”
Yet on crucial matters of administrative law, the Trump White House is putting country before executive power. It’s a refreshing break from the past.
At issue is an alphabet soup’s worth of domestic regulatory agencies collectively known as the “administrative state.” Think: EEOC, FDA, OSHA, etc. In modern American government, these bureaucracies are the real lawmakers. Last year, for example, federal agencies issued 12 regulations for every law Congress passed, and that was the lowest ratio in a decade.
Within the administrative state, unelected bureaucrats can interpret legislation in virtually whatever manner they choose, in effect issuing new laws through regulatory force. In 2009, Congress considered and ultimately failed to pass a “cap‐and‐trade” system that would have basically rationed energy use in order to reduce America’s carbon footprint. Yet in 2014, at the direction of President Barack Obama, the Environmental Protection Agency issued the Clean Power Plan, the “backstop” of which was — wait for it — a cap‐and‐trade system that would basically ration energy use in order to reduce America’s carbon footprint. The agency justified its approach based on an expansive reading of an obscure provision in the Clean Air Act, written almost a half‐century ago.
Since the New Deal, the administrative state’s unabated growth reflects a regrettable abdication of authority to the presidency by the legislative and judicial branches of government. In aggrandizing the executive branch, Congress and the Supreme Court are acting contrary to the founders’ constitutional design, which is, of course, characterized by separate but competing branches of government.
Let’s start with Congress. For more than a century, the House and Senate have been giving away ever more of their lawmaking power to the administrative state. These “delegations” take the form of statutes that create and empower bureaucracies under presidential management within the executive branch.
Why would anyone give away power? The Founding Fathers, after all, built human nature into their constitutional design: They expected power‐hungry leaders in rival branches to cancel each other out. The idea was to protect our liberty from an overweening state. As James Madison famously explained in Federalist 51, “Ambition must be made to counteract ambition.”
By giving away policymaking authority, Congress demonstrates “ambition,” but it’s a perversion of what the founders had in mind. Lawmakers are politicians, and tough choices make for attack ad fodder during reelection campaigns. It is far easier for members of Congress to delegate the hard decisions to regulatory agencies and thereby avoid accountability. They delegate to pass the buck.
The Supreme Court has abetted the growth of the administrative state by adopting hands‐off doctrines of judicial restraint. On the one hand, the court refuses to second‐guess how much power Congress delegates to regulatory agencies; on the other, the court has adopted various principles of judicial respect, or “deference,” that permit these agencies to define the boundaries of their own power. This allows Congress to continue to pass off more and more decisions onto executive agencies, which in turn are given wide discretion in determining what it is they are permitted to do.
Instead of the separate‐but‐equal structure the framers of the Constitution intended, we are left with a series of feedback loops, both of which serve to grow the administrate state.
The first involves Congress. The president, as manager in chief of bureaucratic governance, has become so powerful that both Republicans and Democrats in Congress now believe that the White House is the most efficient vehicle for achieving their parties’ respective platforms. As a result, half of Congress loses interest in executive overreach whenever “their guy” occupies the presidency.
The second feedback loop pertains to federal courts. As the administrative state grows, so does the size and complexity of its policies. Rulemaking records routinely run thousands of pages. Faced with mountains of technical minutiae, courts throw up their hands and rubber‐stamp an agency’s “expert” decision.
As Congress and the Supreme Court looped themselves out of the picture, the president has assumed center stage. Presidents since Richard Nixon have developed successive layers of controls over the management of agency spending and regulatory output. Their purpose has been to tighten the president’s grip over the administrative state.
Trump, in his characteristic manner, is finally shaking things up.
Consider how the Trump administration took on judicial deference. For almost 80 years, the Supreme Court gave binding respect to an agency’s interpretation of the regulations it wrote. The big problem with this principle, known as Auer deference in reference to the 1997 case Auer v. Robbins, is that it allows agencies to take procedural shortcuts.
Normally, an agency must involve the public in a rulemaking process before it can issue a binding regulation. Yet agencies can avoid these participatory procedures through Auer deference. All the agency must do is issue a “nonbinding” guidance document, which does not require a period of public comment. Then, the agency goes to court, receives deference, and magically, its “nonbinding” rule becomes indistinguishable from a regulation with the force of law.
Regardless of who occupied the Oval Office, the simple legal logic remained the same: The Justice Department is an executive branch agency, and broader deference means more power for the executive branch. However, Trump’s Department of Justice is doing things differently. Last term, in one of its most consequential cases, Kisor v. Wilkie, the Supreme Court reconsidered the doctrine of Auer deference. On behalf of the government, Solicitor General Noel Francisco advanced an unprecedented and extraordinary argument.
Simply put, the government’s head Supreme Court lawyer asked the court to scale back the scope of Auer deference drastically. “The doctrine raises significant concerns,” Francisco argued in a brief on behalf of the DOJ. “First, its basis is unclear. It is not well grounded historically; this Court has not articulated a consistent rationale for it; and it is … difficult to justify on the basis of implicit congressional intent.”
To its credit, the Supreme Court agreed and slashed the scope of Auer deference. The Auer doctrine emerged “maimed and enfeebled,” wrote Justice Neil Gorsuch in his concurring opinion, “in truth, zombified.” Gorsuch is right, and credit should go to the Justice Department. It’s not just the judiciary’s homework that the Trump administration is doing. His team is also performing essential duties long neglected by Congress.
Consider, for example, the pressing need for lawmakers to reform the Administrative Procedure Act, also known as the “Constitution of the administrative state.” The act establishes the general framework by which agencies must conduct their business. In this manner, the law provides critical safeguards for the public. The problem is that the APA is almost 75 years old, and it’s showing its age.
Congress passed it in 1946, and the law is a product of its times. Back then, agencies rendered policy almost exclusively through trial‐like adjudications. For instance, in the wake of the stock market crash, Congress in 1934 created the Securities and Exchange Commission and delegated to it the authority to regulate securities to promote market efficiency. The SEC brought enforcement actions against parties allegedly acting against the public interest, and, through the resolution of these proceedings, would establish a rule that applied not only in the immediate controversy, but also to the general public. Indeed, this is how American courts long have made rules through common law. The APA focuses on these sorts of processes.
Today, formal administrative adjudications are comparatively rare in regulatory policymaking. Instead, agencies now rely on rules and guidance, for which there are inadequate procedural safeguards required by the APA. Despite this glaring need for an update, Congress has refused to revisit the statute, on account of the partisan dynamic described above.
Prior presidents had been happy with congressional inaction because it works to the White House’s advantage. If the APA remains outdated, executive branch agencies retain loopholes that make policymaking easier.
But once again, the Trump administration is doing things differently. Since entering the Oval Office, Trump has issued four executive orders related to administrative law. Collectively, these directives call for agencies to do what Congress has left undone: namely, to update the Administrative Procedure Act.
The first results are coming in, and they look very promising. During the first week of December, for example, the Department of Transportation issued what its officials are calling the “rule on rules.” As the agency explained in the preamble, the rule “prescribes the procedures the Department must follow for all stages of the rulemaking process.”
Among its commonsense measures is a requirement for agencies to give closer scrutiny to the costs and benefits of major rules. Another welcome reform is that the agency is providing procedural safeguards for the issuance of guidance documents, memorandums, and other “nonbinding” documents that agencies all too frequently treat as anything but.
These reforms are virtually identical to measures in the unpassed Regulatory Accountability Act, which has floundered in Congress for years. By writing the “rule of rules” into the Code of Federal Regulations, the DOT is creating policy that binds the agency. While Congress idles, the agency is reforming itself.
Other agencies are soon to follow suit in announcing how they have complied with Trump’s executive orders. If the “rule on rules” is any indication, these efforts have the potential to alter fundamentally the administrative state for the better.
Which brings us to what might prove to be the president’s most significant contribution to bringing constitutional order to the administrative state, albeit one that is more indirect than the others described above: the nomination and confirmation of Justices Gorsuch and Brett Kavanaugh, two brilliant judges who had been sounding the alarm about the judiciary’s too‐passive approach to government‐by‐regulation.
As advertised, the newest justices are yanking on the reins of the administrative state. For almost 80 years, the Supreme Court has refused to police how much power Congress transfers to the executive branch. That’s changing, and, along with Justice Clarence Thomas, Gorsuch and Kavanaugh are leading the charge.
Article I of the Constitution vests “all legislative powers” in the Congress. The “nondelegation doctrine” is the idea that it is therefore unconstitutional for Congress to delegate its legislative authority elsewhere, such as to the president or government agencies. The purpose of the nondelegation doctrine is to restrict the ability of Congress to give away its power and responsibility to make laws.
Yet it falls to the executive branch to execute the laws, and sometimes doing so requires agencies to make interpretations. As the late Justice Antonin Scalia wrote in 1989, “Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law, … the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.”
Under its prevailing understanding of the nondelegation doctrine, the court has allowed any delegation that was limited by an “intelligible principle” of scope and action by which a regulatory agency must conform. In practice, however, the court construed “intelligible principle” so broadly that the concept lost all meaning. Even a phrase as nebulous as “public interest” has met the standard. Yet now, it appears a majority on the Supreme Court wants to revisit the nondelegation doctrine for the first time since the New Deal era.
Last term, in Gundy v. United States, three justices signaled support for a masterful dissent written by Gorsuch, in which he issued a clarion call for his colleagues to tame the governmental excesses wrought by the sieve‐like “intelligible principle” test. Kavanaugh didn’t participate in Gundy, as he wasn’t yet on the court when it was argued. However, just before Thanksgiving, he issued an opinion in Paul v. United States that expressly endorsed Gorsuch’s opinion.
That makes for five justices who’ve shown themselves willing to reconsider the nondelegation doctrine. Were the court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its lawmaking power delegated to the executive branch. It would be a welcome and watershed moment for the constitutional status of the administrative state.
It bears repeating that such a profound legal outcome would work at a cross‐purpose with Trump’s interests. These congressional grants of authority are a source of executive power. By restraining the ability of executive branch agencies to write their own laws, the Supreme Court is checking not just our supine Congress but also the president.
Perhaps this curious self‐restraint reflects a silver lining to Trump’s pathological distrust of the bureaucratic careerists who man the administrative state. Alternatively, it may be the result of excellent work by political appointees whose toils are unbeknownst to the president. Most likely, it’s a combination of both.
Whatever the cause, we should all be thankful. Federalist 62 warns that an “excess of lawmaking” is a “disease” to which “our government is most liable.” For this reason, the Constitution makes it hard to pass laws. By contrast, it’s far easier for the president to impose a regulation. All he needs to do is pick up the phone to get the ball rolling.
Because regulations carry the force of law, a government characterized by “presidential administration” incubates the “disease” of “excessive lawmaking” in a manner even worse than that feared by the founders. Overweening government is a threat to liberty, regardless of whether it’s flowing from the executive or legislative branches of government.
To a large extent, the genie is out of the bottle when it comes to the administrative state. It’s been here for more than a century, and it’s here to stay, for better or for worse. In this political environment, the question becomes how best to protect liberty. And the obvious answer is to reintroduce checks into contemporary American government. To this end, Trump deserves high praise.