With the tragic events of the January 6 siege of the Capital still fresh in mind, and scores of Trump Administration personnel jumping overboard, even in its last gasps, the clarion call to “deconstruct” the Administrative State continues unabated. The New York Times recently summarized a handful of initiatives agencies are trying to finalize in the last few days before the January 20th inauguration of Joseph R. Biden as President. (The Business Rules the Trump Administration is Racing to Finish, The New York Times, January 11, 2021) The stickiness of these attempts is, of course, unknown, but a quick, real-time snapshot to reflect on the breadth and magnitude of these historic efforts is worthwhile.
Long a wish of conservative legal and business activists, the “strategy” of the Trump Administration rests on a three legged stool: (1) add as many judges as possible to the federal judiciary with a healthy skepticism of federal authority; (2) reform the administrative process to make it more difficult to re-regulate or add regulations on business in the future; and, (3) roll back as many regulations, particularly in the areas of health and safety and employee and civil rights via executive order and regulation as possible. Prior to the Trump Administration, and particularly for the last 35 years, regulation has tended to veer slightly to the “right” or “left” depending upon administration. The basic ground rules and procedures utilized have not changed much. Winds of change began over the last 10 years—perhaps in response to some of the Obama Administration’s use of executive orders and regulations in a more aggressive fashion to achieve policy goals it was unable to implement through Congress. In response, the Supreme Court, under the leadership of Justices Thomas and Alito in particular, began to articulate theories to check federal action that had not been seriously considered since the New Deal. With the additions of Justices Gorsuch, Kavanaugh, and now Barrett, many ideas that had long been confined to the dust bin of historical interest are suddenly back on the table.
Thus, the first leg of the stool was to get more like-minded judges on the federal bench who would question certain fundamental constitutional doctrines that had evolved over time along with industrialization and growing administrative oversight. This is probably the signal action of the Trump Administration that has the chance to last longest. For example, the breadth of the Commerce Clause may be explored further. How much Congress can leave to administrative agencies to figure out public policy without running afoul of the separation of powers doctrine as articulated in the “non-delegation” rule is suddenly and seriously back in play for the first time since 1935. This can be most acutely seen in the high profile the elimination of the Chevron rule has assumed which would theoretically allow courts to more actively second-guess agency action, particularly when adding new regulations on business.
The second leg is similarly strategic. Many of the tools agencies use to make new policy—e.g., issuing guidance, utilizing science in the environmental area—have been scaled back through new rulemakings and executive orders. This effort to destabilize the Administrative Procedure Act of 1946 which, as interpreted by the courts, has served as the “constitution” for administrative law, may make it much harder for agencies to issue new or expanded regulations.
Finally, and third, is the more straightforward initiatives to eliminate or gut existing regulations. This focus was a theme from the first day of the Trump Administration; issuance of many executive orders, a somewhat and particularized effort to rollback Obama Administration actions, as well as attacks on longer standing policies in the environmental area (e.g., pushing back on NEPA impact statements) were legion. (The Trump Administration is Reversing More than 100 Environmental Rules, The New York Times, November 10, 2020)
Has this effort been a success? The jury is truly out. The Trump Administration has at times been impatient or simply been politically pushed to act in rapid and decisive fashion which has caused many courts, regardless of who appointed the judge, to push back for failure to follow the basic procedures of the APA. (The real reason the Trump administration is constantly losing in court, Washington Post, March 19, 2019)(noting that as of the date of the article, the Administration lost in court at least 63 times); (For Trump Administration, It Has Been Hard to Follow the Rules on Rules, Margot Sanger-Katz, The New York Times, January 22, 2019)(as of date of article, more than 90% of court challenges to major deregulatory actions successful). Similarly, relying on executive orders is perhaps the weakest form of making long-term policy changes. The next president can simply revoke the orders as President-Elect Biden has promised to do in many areas. Finally, many of the last-minute efforts to cram in new rules can be overturned by a simple majority vote under the Congressional Review Act—heavily used by Republicans in early 2017 to reject a number of Obama era rules—now that Democrats have regained control of the Senate.
How quickly the Biden Administration can be reverse the Trump “legacy” is uncertain. This is particularly true given the successful effort to appoint very strong and aggressive justices to the Supreme Court in the administrative law area. One thing is certain however, the administrative ship of state is unstable in a material way for the first time in generations. How it will look when it finally comes into dock is anyone’s guess.
Jonathan M. Broder (LAW ’83) is a retired Vice President of Corporate Development and General Counsel for Conrail. He managed Conrail’s legal and corporate affairs, as well as its real estate and business development departments.