With the 2020 presidential campaign already underway, one of President Donald Trump’s best opportunities to seal a solid first-term legacy lies in his deregulation agenda — a goal broadly embraced by most Republicans. His administration already has 514 deregulatory measures in process, addressing issues as diverse as federal student loans and climate change.
There is, however, one complication: the federal courts. You can expect that virtually every one of Trump’s deregulatory actions will be challenged in court. These suits, which are relatively inexpensive to file, will likely allege that the Trump administration has in some way exceeded or abused presidential power.
Can Trump’s deregulatory moves survive judicial challenges? The answer will be determined case by case, but there are several reasons to believe that many of the actions will be reversed or delayed by federal judges.
Here’s why. Over the past few months, we pored through judicial records and tallied up how many lawsuits challenging deregulation filed after Trump became president have been successful and whether the deciding judges were appointed by Democratic or Republican presidents. What we found is that Democrat-appointed judges still dominate the federal court system, which means that federal judges appointed by Democratic presidents will continue to have a big influence over the fate of Trump’s deregulation agenda.
But this isn’t all bad news for Trump. We also identified several strategies to make it more likely that deregulatory moves can survive court challenges, even under Democratic-appointed judges.
OUR RESEARCH FOUND that although Trump and Senate Majority Leader Mitch McConnell have been working hard to increase the number of Republican-appointed judges in the federal court system, the balance still tips in favor of Democrats, and that is unlikely to change before the end of the president’s first term. Less than 10 percent of active federal judges have been appointed by Trump. By comparison, over 40 percent were appointed by President Barack Obama, and in total 56 percent were appointed by Democratic presidents.
The situation in the federal appellate courts is a little more favorable to Republicans: The overall breakdown between Democratic- and Republican-appointed judges is about 50-50. But that doesn’t hold true for the D.C. Circuit Court of Appeals, the appellate court that hears a disproportionate number of cases against federal regulatory agencies. The D.C. Circuit has 11 judges, seven appointed by Democratic presidents and four appointed by Republican presidents, including the recent confirmation of Neomi Rao, Trump’s former deregulation czar.
This ideological tilt can be seen in the outcome of recent rulings. According to our research, so far there have been 30 lawsuits filed against Trump’s deregulatory actions. Only two were successfully defended by the Trump administration. In the other 28 cases, the administration lost 18 judicial verdicts and settled 10 times to avoid an adverse judicial verdict. While this appears to be a disturbing rate of failure for the administration’s deregulatory agenda, a majority of the cases involved the same question (whether the effective date of an Obama rule can be delayed in order to allow time for a Trump replacement rule to be issued). The more important point is that pro-regulation plaintiffs have been able to get their challenges heard by judges who were appointed by Democratic presidents (often Obama).
While it’s not predetermined that Democrat-appointed judges are always favorable to regulation, our research suggests such a pattern developing against the Trump administration. Of the 18 adverse verdicts, 13 were at the District Court level, where 10 of the judges were appointed by Democratic presidents. Of the five appeals court cases (where three-judge panels ruled), all five panels had at least two judges appointed by Democratic presidents. Two of those five cases were split decisions, with the dissent written by a judge appointed by a Republican president. A worrisome sign for the administration is that they are not winning anywhere close to 100 percent of the judges appointed by GOP presidents. While the GOP may find some solace in the composition of the U.S. Supreme Court, where five of nine justices were appointed by Republican presidents, only a small fraction of regulatory-law cases reach the high court.
For Trump, the reality is that federal judges, primarily Obama appointees, are likely to determine the fate of much, if not all, of his deregulatory agenda.
WHAT CAN THE Trump administration do to better defend its deregulatory agenda? We’ve identified five strategies administration officials can employ to maximize the chance that their deregulatory actions will survive a court challenge.
First, the administration needs to fill the vacant posts at regulatory agencies with qualified people who will work with career staff on the case for deregulation. Without the analytic support of the career staff — who know the relevant science and economics, the program history and previous litigation — the Trump administration is likely to produce deregulatory packages that are indefensible in court.
Second, agency leaders need to build an administrative record with factual findings that support deregulation. Without an appropriate administrative record of facts, no amount of creative lawyering can save a deregulatory action. Judges, regardless of who appointed them, will focus on the administrative record; the clearer this record can be, the more likely it is that the regulatory action will be affirmed.
Third, the general counsels at federal agencies need to work hard to ensure that each procedural requirement for deregulation has been honored; the easiest way for a federal judge to block deregulation is to point to a procedural box that has not been checked. Reviewing how and why prior legal challenges succeeded or failed will be helpful for administration officials to chart legal strategy.
Fourth, Trump’s regulatory czar in the White House Office of Regulatory Affairs needs to work with federal agencies to make sure that regulatory impact analysis considers both the benefits of regulation as well as the cost savings from deregulation. If the analysis ignores or downplays forgone benefits, it will be easier for a federal judge to determine that the administration has been “arbitrary and capricious” and to overturn the regulatory action. The administration’s climate-related rulemakings are especially vulnerable in this regard, since the official 2009 Environmental Protection Agency finding that climate change “endangers” public health and welfare under the Clean Air Act is still in effect. The stronger the analysis and administrative record, the more difficult it becomes for a judge to find the action to be “arbitrary and capricious.”
Finally, the administration needs to consider carefully how federal deregulation will affect state and local regulation. In some situations, it might be preferable for the Trump administration to keep more federal regulations than it thinks is appropriate in order to avoid a backlash of state and local regulation, which might be more restrictive. While predicting how states will react to federal regulatory action might be difficult, working with state regulators, where possible, could result in a more consistent regulatory process overall.
If Trump wants his deregulatory agenda to succeed, his administration will need to convince Democratic-appointed federal judges that they have engaged in “smart” deregulation. It will not be easy, and if their current success rate is any indication, the Trump administration will need to be smarter in its approach over the next two years.
John D. Graham is the former administrator of the Office of Information and Regulatory Affairs under President George W. Bush and current dean of the School of Public and Environmental Affairs at Indiana University.
Keith B. Belton is director of the Manufacturing Policy Initiative at the School of Public and Environmental Affairs at Indiana University.
Article originally published on POLITICO Magazine
Source: https://www.politico.com/agenda/story/2019/03/26/trump-deregulation-agenda-000885
Droolin’ Dog sniffed out this story and shared it with you.
The Article Was Written/Published By: Keith Belton
! #Headlines, #Corruption, #Political, #Politico, #Trending, #Trump, #Newsfeed, #syndicated, news
No comments:
Post a Comment