In the wake of Department of Commerce v. New York, administrative law may now be permanently changed.
In Monty Python’s immortal words I’m not dead, yet; but I don’t have much insight into the new political era, either. I therefore commend to your attention a sensational essay by someone who does: “Regulatory Reform,” by Christopher C. DeMuth. One of Chris’s best pieces ever, and that is saying something. Under a cheekily acronymed REFORM Act (Referrals from the Executive For Regulatory Modernization):
[T]he president would refer selected regulatory reforms to the House and Senate and urge their prompt consideration and approval. Where an agency rule departed from a reasonably clear statutory provision, or from judicial interpretations of a broad or ambiguous provision, the agency would explain the departure and the reasons for its new approach. The reasons could not, for the REFORM procedure, be sheer policy preference—rather, they would be limited to improving the agency’s pursuit of the missions Congress had already assigned to it. […] Congress would approve the rule itself, not just its issuance. And, in cases of uncertain statutory authority, the submitted rule would be accompanied by suggested, surgical statutory revisions, and Congress could enact the revisions along with its approval of the implementing rule.
With characteristic verve, sophistication, and political horse sense, DeMuth explains how and why this might actually work, and why it would be a very good thing.
Yes: you can dismiss REFORM as starry-eyed. It assumes (I think) that—as Dan Henninger has put it in a splendid column—we will have a “public” Trump administration, consisting of tweets for the deplorables (talk Putin up and Lockheed Martin down); and a “private” Trump administration that is serious about getting stuff done, including things that never occurred to the President’s base. Too, REFORM assumes that Congress will want to get involved. DeMuth notes that Congress is categorically unwilling to revisit and revamp big statutes, such as the Clean Air Act. There’s a real question, though, whether Congress is still open to more “surgical,” REFORM-style interventions. For example, under the existing Congressional Review Act, Congress could with a single vote wipe out some 240 “midnight regulations” issued by the Obama administration since May 2016, plus—as the Competitive Enterprise Institute’s Wayne Crews explains–a ton of administrative “guidances.” Not gonna happen: our Solons will overturn five Mickey-Mouse regs, max. Voting on the rest would distract GOP legislators from their solemn duty to yap about a run-away “administrative state.”
Those quarrels noted, you have to hope for something good—no? In any event, DeMuth is on to a very serious point here, or rather two.
First point: Progressives and their heirs say we need administrative agencies with ample discretion to keep up with a fast-moving world. Pure applesauce: the agencies’ collective output composes the most encrusted corpus juris known to mankind. Bureaucracies, including OIRA, are absolutely awful at revisiting their handiwork even when they put their minds to it. Under Cass Sunstein’s much-ballyhooed “look-back” program, for example, the government ditched an absurd “spilled milk” rule, and not much else. No agency ever says, “This rule didn’t work the way we wanted and here’s the evidence; it wasn’t arbitrary and capricious then but it surely is now.”
REFORM would provide a focus and energy to prompt agencies to do what they’re supposed to be doing: modernize. Keep up with the times. In a friendly amendment to Chris’s proposal I suggest that the impulse need not come from the President. Reasoned, well-crafted petitions for rulemaking, see APA sec. 553(e), would serve the same purpose, and they would carry some real oomph if they were advanced by, say, 30 or so states. If the agency says “no” there’s Mass v. EPA review (ask, I’ll explain); if it goes ahead there’s REFORM.
Second point: the friends of a more limited, decentralized government might as well admit to themselves that they have acquired a vested interest in a law-less, extra-legal, executive-dominated, pen-and-phone form of government. Secretary DeVos could voucherize the entire K-12 system by issuing a “big waiver” to states that adopt her favored policy. Administrator Pruitt could do to California and New York what the preceding administration has done to energy-producing states: make life very unpleasant; let them sue; and ignore the judicial rulings. Some $650 billion in federal grants can be directed this or that way in the executive’s discretion; and unless this administration is run by protozoans, a disproportionate amount of money will end up in big swing states like Pennsylvania. (That’s a prediction, not a suggestion.) Upon information and belief we have hyperventilated and litigated over the Obama administration’s refusal to enforce the immigration laws; on second thought, a refusal to enforce something like 80 percent of the U.S. Code and the Code of Federal Regulations would be a splendid way to make America great again. While there’s been a lot of harrumphing about the CFPB’s lavish offices, I would personally embrace a Trumpian proposal to gold-plate every last faucet in every last federal agency, on account of the opportunity benefits: the alternative to government waste is to spend the appropriated funds on regulating, and that would be worse. And so on.
The temptation to give in to this Peronist style of government is, well, yuge. For reasons I’ve explained here, that would be true even if the president were a constitutionalist, not a closet caudillo. Precisely because that is so, there is every reason to champion programs and proposals that make rock-bottom commitments to a more sensible, efficient, and lawful government all hang together.