Trump Should Pick up Where He Left off

In his first term in office, President Trump took meaningful steps to rein in abusive and unconstitutional agency investigations and inhouse administrative prosecutions and thereby protect the due process rights of the American public. He should do so again starting on day one.

Unfortunately, and despite the first Trump Administration’s efforts, today the reality remains that the administrative state wields broad and extraconstitutional power without sufficient accountability or guardrails, wrongfully and unlawfully threatening Americans’ livelihoods and liberty. To put this in concrete perspective: An alphabet soup of federal agencies like the SEC, FTC, CFPB, and CPSC not only have the power to make “law” by promulgating binding regulations but also possess sweeping investigative and enforcement powers, including the ability to impose daunting monetary penalties and other serious sanctions.

On top of this, these and other administrative bodies are also empowered to bring inhouse administrative prosecutions—where the agency wears multiple hats, acting as investigator, prosecutor, and judge of its own cause, and makes the rules—against private parties. In short, from the jump the game is rigged. Unsurprisingly, then, these agencies all too often find in their own favor. Making matters worse, the leaders of many agencies are shielded from accountability to the democratically elected President and, by extension, the American People by tenure-like protections.

To say the least, this state of affairs stands in tension with the Constitution. It also creates a fertile environment for agency overreach and coercion. For as James Madison observed in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” Unfortunately, that well describes the status quo. Worse still, ordinary Americans and small businesses are often hardest hit. Indeed, few have the resources or resolve to resist the full weight of the federal government.

Recognizing this problem, in his first term President Trump took numerous actions to rein in bureaucratic abuse. For example, he issued an Executive Order establishing a commonsense regulatory bill of rights outlining ten core principles reflecting basic shared American values:

“The Government should bear the burden of proving an alleged violation of law; the subject of enforcement should not bear the burden of proving” its innocence.

“Administrative enforcement should be prompt and fair.”

“Administrative adjudicators should be independent of enforcement staff.” In plain English, the prosecutor and judge shouldn’t be working together against the accused.

“[T]he Government should [generally] provide favorable relevant evidence . . . to the subject of an administrative enforcement action.”

“All rules of evidence and procedure should be public, clear, and effective.”

“Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law,” i.e., not arbitrary and capricious.

“Administrative enforcement should be free of improper Government coercion.”

“Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.”

“Administrative enforcement should be free of unfair surprise.”

“Agencies must be accountable for their administrative enforcement decisions.”

And in October 2019 President Trump built on this progress, issuing two more landmark Executive Orders on agency transparency and administrative due process: Executive Order 13891, titled “Promoting the Rule of Law Through Improved Agency Guidance Documents,” and Executive Order 13892, titled “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.” The common themes: fundamental fairness, transparency, and due process.

E.O. 13,891 was aimed at “ensur[ing] that Americans are subject to only those binding rules imposed through duly enacted statutes or through regulations lawfully promulgated under them, and that Americans have fair notice of their obligations” under federal law. Toward this end, it sought to bar agencies from using so-called guidance documents as a substitute for properly promulgated regulations—subject to meaningful notice and public comment—to evade their procedural obligations under the Administrative Procedure Act and avoid judicial oversight. It also required agencies to adopt commonsense transparency measures such as making all guidance documents publicly available on the agency’s website.

E.O. 13,892 had related goals, such as ensuring that people “know in advance the rules by which the Federal Government will judge their actions” and requiring federal agencies to “act transparently and fairly with” people. Consistent with these aims, it required agencies to “apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise” when bringing enforcement actions against businesses and citizens or otherwise making decisions that affect peoples’ lives.

The Trump Administration didn’t stop there, asking the American People for input on further fairness and transparency reforms. Americans for Prosperity Foundation, among many others, urged the Administration to continue its efforts to rein in agency abuse of the American People, suggesting additional reforms. The Administration acted on that public feedback and did just that. In August 2020, then-OIRA Administrator Paul Ray issued a memorandum setting forth best practices agencies should use to treat the American People with fairness and respect and be transparent with them about the agency’s expectations.

Who could disagree with any of this? And on what grounds?

Nevertheless, for reasons that remain unclear, the day he took office President Biden issued an Executive Order that summarily revoked all of these fairness, due process, and transparency improvements—and many more— without explanation. That makes no sense.

On day one, President Trump should restore these protections. And the next Administration should take the next step by building on and expanding its previous efforts to protect the public from agency overreach and abuse. The incoming Administration’s next steps should also be informed by the Supreme Court’s landmark decisions in Loper Bright v. Raimondo, which ruled that federal judges shouldn’t defer to agencies’ views on what the law is, and SEC v. Jarkesy, which ruled the SEC’s use of its inhouse tribunal to extract civil penalties unconstitutionally deprived people of their constitutional right to a jury trial. As it did before, the incoming Administration should also seek knowledge from those who know best and request the American People’s input and public participation in this process.

Fundamental fairness, transparency, due process, and the rule of law—as opposed to the rule of unelected people by bureaucratic fiat—are basic shared American values. The incoming Administration should double down on its efforts to bring the administrative state in line with those values and the U.S. Constitution. The American People deserve no less.

Michael Pepson is regulatory counsel at Americans for Prosperity Foundation.

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