Today, Neomi Rao is likely to take one step closer to becoming the Administrator of the Office of Information and Regulatory Affairs (OIRA) – that is, the Trump administration's "regulatory czar" – with the Senate Homeland Security and Governmental Affairs Committee expected to favorably report her nomination to the Senate floor for a final confirmation vote.
As detailed in an April 2017 CPR report on her nomination, Rao would arrive at her new position with little substantive expertise related to OIRA's work. (Evidently, her demonstrated commitment to the prevailing conservative anti-regulatory orthodoxy was the only real qualification that was needed.) But Rao still has some time to brush up on the big issues she will face as OIRA Administrator, and at the top her reading list should be The Twin Demons of the Trump-Bannon Assault on Democracy, a new report out today from Center for Progressive Reform (CPR) Member Scholar Joseph Tomain.
In the new report, Tomain examines the fundamental legal weaknesses of two anti-regulatory executive orders that Trump has issued. Rao, as OIRA Administrator, would have the primary responsibility for implementing these orders.
The first one, Executive Order 13771, directs agencies to repeal or weaken at least two existing rules for every new rule they wish to issue and to further ensure that the cost savings from the deregulatory actions at least offset any costs the new rule might impose. The second one, Executive Order 13777, provides agencies with detailed instructions on how to carry out the so-called "2-for-1" order (along with other existing anti-regulatory orders), including mandates to establish a "task force" charged with identifying existing rules that are ripe for repeal or weakening and a set of criteria for prioritizing rules for deregulatory actions.
A group of public interest organizations has brought a lawsuit against Executive Order 13771, which argues that the order is unlawful and unconstitutional. Tomain was a lead author of an amicus brief filed in support of the lawsuit, which was joined by several other CPR-affiliated legal experts, acting in their individual capacities.
The new report dissects the key legal and constitutional issues that are at the heart of the public interest lawsuit against Trump's 2-for-1 order to explain how Trump's broader assault on public safeguards – what Trump's chief strategist Steve Bannon characterized as the administration's campaign to bring about the "deconstruction of the administrative state" – "constitutes a severe threat to American society and the American economy." As the report notes, compliance with Trump's anti-regulatory orders would necessarily oblige agencies to disregard the substantive mandates of their authorizing statutes and to ignore essential procedural requirements aimed at preventing arbitrary or irrational policymaking. What makes these orders unconstitutional is that these results are a feature and not a bug.
As the new report explains, the dangers inherent to Trump's anti-regulatory executive orders extend much further than these legal problems. The defining characteristic of the orders is that their myopic focus on regulatory costs effectively serves to remove consideration of regulatory benefits from the equation in agency regulatory decision-making. This aspect of the orders runs directly counter to the entire history of U.S. regulation, stretching all the way back to the Founding era. Indeed, among the first laws to be enacted by Congress in 1789 were several that were essentially regulatory in nature. Critically, the regulatory functions established in those early laws were defined in terms of advancing some conception of the public good – that is, in the achievement of regulatory benefits. In the centuries since, the pursuit of certain defined regulatory benefits has been inextricably intertwined with the nation of rational policymaking via regulation.
In short, the Trump anti-regulatory executive orders threaten to upend the foundational principles that underlie the regulatory system that have for decades kept our economy humming along and, more recently, protected people and the environment against unacceptable risks of harm that have become increasingly common in a modern industrialized society. Beyond the immediate harms that would result from the reckless deregulatory actions carried out in response to the orders' mandates, these orders also risk doing lasting damage to one of our nation's essential governing institutions.