During the night of April 9, President Donald Trump continued his administration’s radical assault on our nation’s critical system of regulatory safeguards with three new executive orders and a separate memorandum. These actions build on several previous ones that target regulatory safeguards, and they traffic in a lot of the same false rhetoric about the essential role our regulatory system plays in our society.
But what makes these actions different is the manner in which they trample on administrative law and the procedural protections that it is meant to uphold.
Within the political left, there is currently a robust debate over whether government agencies have become subject to “too much process,” preventing them from achieving their missions and delivering real results for the public they serve. It is an important debate. But, while reasonable minds can disagree over how much process we need, no serious person can deny that some process is vital for ensuring that government decision-making is democratically grounded and subject to an appropriate degree of deliberation.
Trump is not serious because he is an authoritarian. His actions would dispense with all of the values administrative procedures are designed to preserve and advance. In its own way, each action seeks to evade notice-and-comment rulemaking procedures to advance its deregulatory agenda. And each pretends that its predetermined policy decisions transcend the need for careful deliberation.
It may seem weird to defend in the abstract something like administrative law and process — even for someone like me who does it every day. But it exists for a reason, and its story has been one of ongoing refinement and evolution — often haphazard — in response to widely recognized challenges. The end result is that it makes “good government” hard. And while that can be frustrating, it often produces better results with broader public buy-in.
But that is not the challenge we face with Trump. Instead, his presidential actions also demonstrate that administrative law makes authoritarianism hard, too. That’s why Trump is targeting it. The pursuit of idiosyncratic grievances — showerheads — and gifts for politically connected industries — energy deregulation — generally cannot survive administrative law’s procedural gauntlet of public participation and deliberative, expertise-informed judgment.
Administrative law is important to democracy and rule of law principles, and that is why authoritarians seek to minimize or evade it. That should be clear from Trump’s actions last night. And I fear it will only become clearer in the months ahead.
