Elon Musk and Vivek Ramaswamy are heading up an important project to reform the administrative state and root out inefficiencies in the federal government, which they dubbed the Department of Government Efficiency or DOGE. This commendable effort is long overdue, and we should all contribute and support the work. To create lasting policy change, DOGE will have to both embrace and master the existing methodical process to rescind regulations.
They gave us our best look yet at what they intend to do in a Wall Street Journal piece. One passage in the piece has received significant attention:
DOGE will present this list of regulations to President Trump, who can, by executive action, immediately pause the enforcement of those regulations and initiate the process for review and rescission.
Musk and Ramaswamy correctly note that two Supreme Court decisions—West Virginia v. EPA and Loper Bright v. Raimondo, a case my organization litigated—have refocused the lens through which we evaluate agency actions.
West Virginia reiterated that Congress does not blithely assign agencies the power to issue rules purporting to resolve major economic or political questions. Instead, if Congress intends agencies to issue such rules, it must do so with a clear statement within the bounds of the nondelegation doctrine. Loper Bright ended judicial deference to agency interpretations of statutes and instead directs the judiciary to provide the best reading of the law, its core function in our system of government. Countless rules throughout the federal government must be reformed to comply with these standards.
Musk and Ramaswamy argue “the president [should] nullif[y] thousands of such regulations.” George Washington Law Professor Richard Pierce believes that approach would be unlawful, while others believe it could succeed. Case Western Reserve Law Professor Jonthan Adler noted “there’s litigation risk that [the new administration is] not adequately accounting for.”
While the impulse behind this effort is laudable and rightly placed, such an across-the-board approach risks running afoul of the Administrative Procedure Act (APA) and existing case law on the procedural requirements for rescinding agency rules.
There is a better way.
- President Trump should immediately direct all federal agencies to review existing rules to determine which ones are beyond their statutory authority after West Virginia and Loper Bright. House Majority Leader Steve Scalise sent oversight letters to scores of agencies in July directing them to begin this task.
- Each agency should make a list of such rules and send it to the White House for review and approval.
- Each agency should then send the White House-approved list to Congress and tell it that the rules are unlawful and that the agency will immediately begin the APA recession process. In doing so, the Trump administration would be answering the Scalise letters and recognizing Congress’ important role in this process.
- If Congress believes some of the rules are necessary and within their design of the authorizing statute, then Congress should codify the rule. This aspect of the plan takes its inspiration from the REINS Act.
- Agencies should then immediately begin individualized 30-day notice-and-comment rulemakings to rescind the unlawful regulations. The notices beginning those rulemakings must contain a meaningful legal argument about why the existing rule is beyond the agency’s statutory ambit.
- Agencies should also announce that they will exercise a measure of prosecutorial discretion regarding unlawful rules while this process is ongoing. Nonenforcement based on illegality is a sounder footing for prosecutorial discretion than other uses of the power.
Yes, this process is laborious. It will take focus and determination from the administrative officials who are tasked with executing it. But that is what is necessary to create durable policy change.
I am leery of an attempt to invoke an APA good-cause exemption or using interim final rules to expedite deregulation because it risks jeopardizing the entire project. A blanket or cut-and-paste invocation of good cause to avoid notice and comment is too thin a reed to support such a large project when the inevitable barrage of litigation ensues.
As Cass Sunstein laid out, all of this will have to be done without the judiciary deferring to the deregulatory preferences of the Trump administration. Instead, the project will be a joint effort between the administration, Congress, and the judiciary to determine the best reading of the authorizing statutes. And that is at it should be. As Musk and Ramaswamy aptly wrote, this effort “will be correcting the executive overreach of thousands of regulations promulgated by administrative fiat that were never authorized by Congress.”
My colleague Michael Pepson has laid out several actions the president also should take to pick up where he left off at end of this last term reforming the administrative state, including providing a constitutional level of due process in agency adjudications and increasing transparency of guidance documents. The new administration should put those policies in place across the federal government right away.
The unconstitutional and overreaching administrative state was not put in place overnight. And it will not be dismantled in one fell swoop either. The ossified regulatory structures burdening our economy and infringing our liberties must be methodically dismantled to create lasting change. Thankfully, we’re at a moment where such reform is possible. Let’s not waste it.
James Valvo is executive director at Cause of Action Institute, which is litigating Loper Bright v. Raimondo, and chief policy counsel at Americans for Prosperity Foundation.
Read Full Article »
