The Regulatory State in the Trump Administration
By Sami Elamad
Like its predecessors, the Trump Administration has flexed its regulatory muscles to advance its policy agenda. However, acting through the administrative state has not proved to be as successful as previous administrations.
More often than not, litigation brought under the Administrative Procedure Act (APA) has stymied President Trump’s desire to quickly pass legislation and skip the lengthy congressional process. Examples include the administration’s attempts to rescind the DACA program, add a citizenship question to the census, and eliminate funding for teen pregnancy prevention programs—all of which have been halted by judicial review.
Passed in 1946 and signed by then-President Harry Truman, the APA was designed to interpose structure and oversight to agency conduct.
“There was a need for a procedural regularization of how agencies operated,” Ronald Krotoszynski, professor of law at the University of Alabama and co-author of an Administrative Law casebook, said.
Krotoszynski said this was particularly important at the time because of New Deal policies that substantially expanded the administrative state.
The APA mandates federal courts to set aside any federal agency’s action or regulation that is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” This language has become virtually weaponized in the context of the Trump administration’s policies.
“We want agencies to behave rationally, whether it’s a Democratic or Republican administration,” Krotoszynski said. “These procedures are meant to ensure transparency and openness, and to create a record that allows judges to keep agencies honest.”
Federal courts have overturned over 80 percent of the President’s efforts to pass new policies or undo existing ones, according to the NYU Institute for Policy Integrity.
William Buzbee, professor of law at Georgetown University, said such legal challenges historically resulted in favorable outcomes for previous administrations around 70 percent of the time. But, the Trump administration success’s rate is closer to 20 percent—drastically lower than the average.
In part, an administration’s fate in the courts is tied to their willingness and ability to follow the APA’s prescriptive requirements. To be sure, the APA instructs agencies to follow “actual science and actual data,” Buzbee said, which “really do matter.” Thus, any agency action that overlooks their importance will likely not find much reprieve in the courts.
“In theory, administrative regularity shouldn’t just be a function of judicial review,” Krotoszynski said. “Congress should have more skin in the game.”
In practice, however, members of Congress act as “cheerleaders” when the president is a member of their political party. As a result, our system of government has evolved functionally into a parliamentary system, he said.
“Members of the president’s party lead a principal role as being cheerleaders for the president, as opposed to staffing and exercising the constitutional prerogatives of a coequal branch,” Krotoszynski said.
Altogether, then, these changes have amounted to an “imperial presidency,” illustrated by a “president that rules by decree in the form of executive orders.”
Buzbee said part of the administration’s low success rate is because of the hyper-politicization of agency action.
When an administration is more concerned about “the claim of victory, rather than the certainty of long-term victory, sometimes they will push agencies and departments to act when they’re not ready,” Buzbee said.
For example, in March 2018, the U.S. Secretary of Commerce announced the addition of a citizenship question to the decennial census. The Secretary reasoned that the addition was in response to a request by the U.S. Department of Justice (DOJ) to enforce the Voting Rights Act .
In turn, various states and non-governmental groups sued the Secretary, arguing that he violated the APA, among other things. In a nutshell, they asserted that the question would actually discourage minorities from completing the survey. Put differently, noncitizen individuals would likely not participate in the census.
The district court agreed as much: the Secretary “failed to consider several important aspects,” “cherry-picked, or badly misconstrued the evidence,” and “acted irrationally,” amounting to “a veritable smorgasbord of classic, clear-cut APA violations,” Judge Jesse Furman concluded in a 277-page opinion.
The administration appealed the Census case to the U.S. Supreme Court, where it still didn’t find much success. Writing for the court, Chief Justice John Roberts concluded that the Secretary “was determined to reinstate a citizenship question from the time he entered office” and “subsequently contacted the Attorney General himself” to influence the DOJ to submit a pretextual request related to citizenship data.
“Altogether, the evidence tells a story that does not match,” Roberts wrote, and the Secretary’s stated rationale “seems to have been contrived.”
Ironically, some of the Trump Administration’s frequent losses—some of which occurred at the Supreme Court—“may end up being somewhat enduring precedents that would weaken executive overreach in the long term,” Buzbee added. Thus, the administration’s current efforts may ultimately be counterintuitive in the long term.
“Systematic failures to observe procedural requirements for agency action ought to be a matter of public concern,” Krotoszynski said.
Krotosynzki said the recent election of Joseph Biden as U.S. president signals a return to an “administrative normality and regular process.”
Krotoszynski suggests that the increasingly progressive use of administrative power since the 1980s signals a deeper problem of American democracy.
“Letting an administrative agency change policies on a whim is a dangerous and problematic thing to do,” Krotoszynski said.
Krotoszynski said it is difficult to pinpoint a specific solution to counterbalance the growing weight of the administrative state. Still, he said, one solution may be a more “engaged and organized citizenry.” He said the high turnout of the recent presidential election suggests that such a solution isn’t necessarily so elusive.
“What the APA does, and does really well, is it forces administrative action into the sunlight, thereby rendering it accountable,” Krotoszynski said.
(Editor's Note: This article was originally published in the November 2020 [Volume 51, Issue 2] edition of The Advocate.)