Why Congress
still needs to defund economy-killing regulations to bolster Trump, by Robert Romano, 3/28/17
One of central planks President
Donald Trump ran on in 2016 was get rid of economically harmful, job-killing
regulations.
The process appears straightforward
enough. Whatever can be done by executive action can be undone by executive
action. If regulations were initiated via the regulatory process under the
Administrative Procedures Act (APA), surely that works in reverse, right? Not
so fast.
In 1983, the Supreme Court
unanimously decided in Motor Vehicle Manufacturers Association v. State Farm
Mutual that in rescinding any
regulation issued by a prior administration an agency changing its course by
rescinding a rule is obligated to supply a reasoned analysis, “for the change
beyond that which may be required when an agency does not act in the first
instance.”
While perhaps well-intentioned, in
determining that the National Highway Traffic Safety Administration and thus
every other agency had to provide a basis for rescinding any of its regulations
— just as it must for issuing them — the outcome is that it is functionally
more difficult to rescind an existing regulation than it is to either modify it
or never have issued it in the first place.
This leaves every single regulatory
rescission enacted via executive action under the APA subject to judicial
review, where ultimately, the rescinding agency will have to argue not only
that rescinding the regulation in question is rational based on the statutory
scheme, but prove that enacting it was irrational to begin with.
The problem with that proposition is
that in the administrative state regulations almost always, with some notable
exceptions, have some basis in law for being enacted. And even when they don’t,
as in Massachusetts v. EPA in 2007 when the Supreme Court ruled carbon dioxide
could be regulated under the terms of the Clean Air Act even though the law
never contemplated doing so, the courts have tended to uphold and expand the
regulatory scheme of the administrative state.
This puts the Trump administration
in an uphill situation when it comes to relying solely on executive action and
the regulatory process under the APA to rescind regulations. Ultimately, each and every case will
be subjected to heightened scrutiny, coming down to whether five justices agree
that the regulation did not rationally rest in the statutory scheme in the
first place or agree with the administration’s rational basis for rescinding
the rule. And that may just come down to whether they like the regulation or
not.
It does not matter that the 1983
decision promised this would not mean regulations last forever, writing “we
fully recognize that ‘regulatory agencies do not establish rules of conduct to
last forever,’” citing the 1967 case, American Trucking Assns., Inc. v. Atchison, T. &
S. F. R. Co. After all, the court added in the
1983 case, “the forces of change do not always or necessarily point in the
direction of deregulation.
In the abstract, there is no more
reason to presume that changing circumstances require the rescission of prior
action, instead of a revision in or even the extension of current regulation.”
The point is, the assumption in each
of these cases will be that the original regulation was properly enacted and is
rationally based on the statutory scheme Congress enacted, and in rescinding
the regulation it will be up to the Trump administration to prove otherwise in
court. That’s a losing battle.
The Trump administration would be
better served if Congress were to affirmatively act to defund economically
damaging regulations — for example via upcoming votes on the April 28
continuing resolution and the debt ceiling — to prohibit the use of funds in
implementing those regulations.
It is a much better argument in court
that the administration lacks funds to implement certain regulations because of
steps Congress took via Article I to prohibit their implementation and so must
be rescinded.
We’ve already seen what courts will
do when given the opportunity to expand the administrative state. That is why
Congress must act, said Americans for Limited Government President Rick Manning
in a statement. “The election of a new president does not absolve Congress of
its Article I responsibilities to defund harmful regulations,” Manning noted.
“Members need to provide President
Trump with every tool and direction related to any regulations that need to be
rescinded or reworked. There’s no excuse for continuing to abdicate Congress’
basic, constitutional power of the purse, particularly when doing so leaves it
up to chance and courts to ultimately uphold any attempted regulatory
rescissions by the Trump administration. Instead, Congress must strengthen the
president’s hand, by acting affirmatively to prohibit funds for any regulations
deemed harmful to the economy,” Manning concluded.
In the end, executive action alone
is no silver bullet in the face of a judiciary that intends to affirm the
administrative state, and solely relying on it means leaving the deregulatory
agenda to chance and worse, liberal federal judges who will find every reason
in the world to keep these economy-killing rules in place. President Trump and
Congress need to be smarter this time and defund these regulations.
Robert
Romano is a contributing editor at Americans for Limited Government.
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