How Should the President-elect Uphold the Rule of Law?

Under the Obama administration, executive branch departments and independent agencies issued numerous regulations and guidance documents that should be withdrawn or reversed through rulemaking. The President-elect should direct the heads of every department to carefully assess existing rules and interpretations, especially—but not exclusively—those issued during the past eight years. This includes any so-called “midnight regulations” that the current administration reportedly plans to rush out the door before January 20, a topic discussed at length by my colleague Wayne Crews in a recent Forbes column. As for independent agency appointments, the incoming President should nominate individuals who care about reining in the regulatory state—even if it means relinquishing their own power.

To be sure, executive branch departments and agencies do not have carte blanche to withdraw regulations or rewrite guidance documents on a whim. They must follow the process set forth in the Administrative Procedure Act (APA), which in many cases requires an agency to notify the public before it plans to act and give interested persons a chance to submit their views on whatever the agency is proposing to do. And when issuing a final regulation, an agency generally must also explain the rationale and legal basis for the rule. For the incoming administration to undo various Obama-era regulations because they violated the APA while failing to adhere faithfully to the law’s requirements would reek of hypocrisy. This does not mean that Americans are condemned to live under every regulation ever issued—it simply means that agency heads in the new administration will have to work hard to explain their actions and carefully document the legal or evidentiary defects of any rules they plan to revise or eliminate. And the new administration should consider reversing especially harmful regulations immediately by issuing an interim final rule, as the APA permits an agency to do when it has good cause to conclude that delaying action would result in serious injury to the marketplace, among other things.

There’s no shortage of rules that merit a place on the chopping block under the next administration, from the EPA’s Clean Power Plan to the FCC’s Open Internet Order to the Department of Labor’s overtime rule. For more examples, check out The Hill’s recent article that lists 14 Obama-era regulations that are candidates for elimination once the President-elect takes office. As for rules issued after June 1, give or take a few days, Congress can simply eliminate them by sending a joint resolution to the President’s desk after he takes office pursuant to the Congressional Review Act. Wayne Crews has compiled a nice list of some 140 “significant” rules that will likely fall within this window.

Support efforts by Congress to reclaim its Article I powers delegated to departments and agencies.

Article I, Section 1 of the Constitution states that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States.” Yet for over a century, and especially in recent decades, Congress has passed laws delegating legislative—or “quasi-legislative”—authority to executive and independent agencies. So, for example, the FCC has the power to decide how to allocate wireless broadcast licenses based on its determination of the “public interest, convenience, and necessity”—a term nowhere defined in federal law. And the Consumer Financial Protection Bureau has the power to stop companies from engaging in any “unfair, deceptive, or abusive act or practice” in connection with consumer financial services. The U.S. Code abounds with similarly broad grants of authority to executive departments and independent agencies.

Congress’s power to delegate this authority to agencies is not limitless. As the Supreme Court emphasized in a 2001 decision, “when Congress confers decisionmaking authority upon agencies Congress must ‘lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’” In practice, however, courts have given Congress wide latitude to hand over vast swaths of legislative power to agencies in the executive branch.

A movement to reverse this trend has been gaining traction in recent years. Sen. Mike Lee (R-UT), Rep. Jeb Hensarling (R-TX), and several other members of Congress launched the Article I Project in early 2016 to “promote a new agenda of structural reforms that will strengthen Congress and reassert its vital role in our society.” They aim to curtail the power of unelected bureaucrats while restoring accountability and transparency to the process by which decisions that bind the public are made.

The President-elect should view this effort not as an improper intrusion on his Article II powers, but as an overdue assertion by Congress of its constitutional prerogative. Although the framers intended that each branch of government “resist encroachments” on its powers from the other branches, the agglomeration of powers in a single branch of government has arguably reached a point where a bit of humility from the Executive is unlikely to create further imbalance in the separation of powers.

Appoint judges who vigorously enforce constitutional rights and the separation of powers.

In addition to nominating at least one Supreme Court Justice, the next President will have many opportunities to nominate judges to the United States courts of appeals and district courts. Given that the Supreme Court now hears fewer than 100 cases per year, many important legal disputes are ultimately resolved in the lower courts, such as the thirteen U.S. courts of appeals or the 94 federal district courts. A typical President will see around 35 of his nominees confirmed to the courts of appeals—and an additional 150 nominees to the district courts—over the course of a four-year term.

How should the next President go about deciding whom to appoint to the federal bench? Ideally, the President-elect should select candidates who believe in judicial engagement. They should independently assess the constitutionality of legislative and executive actions, rather than deferring to the supposed wisdom of the elected branches of government. As Clark Neily of the Institute for Justice has argued, judges should “make a sincere evaluation of the government’s conduct” instead of “deliberately turn[ing] a blind eye” to statutes and regulations. The judiciary abdicates its duty as a co-equal branch of government when it rubber stamps laws simply because a judge can “make up any possible legitimate reason why a legislature might have enacted it,” as law professor Randy Barnett has written.

Appointing engaged judges may increase the risk that the incoming President sees his decisions occasionally invalidated by the courts—but this does not justify selecting candidates who will simply rubber-stamp executive action. Judges are appointed for life; the men and women who join the bench over the next four years may still be there in twenty years—or even a half-century from now. The President-elect should realize that his successor may disagree strongly with his policies. Selecting judges who care about the Constitution enough to protect individual rights even when it means undoing the work of the elected branches of government will help guard against future Presidents’ unconstitutional acts. A President’s legacy extends beyond the laws he signs and the orders he issues; influencing the composition of the judiciary has a lasting effect that cannot easily be undone by the plurality of voters in a single election.

Respect the autonomy of independent regulatory agencies so long as they exist in their current form.

Although the Constitution states that the “executive power shall be vested in a President of the United States of America,” the Supreme Court has long held that Congress may create entities that exercise “quasi-judicial and quasi-legislative” powers. These unique but increasingly powerful entities, also known as independent agencies, are typically headed by a handful of members who are appointed by the President and confirmed by Senate. Examples of independent agencies include the National Labor Relations Board, the Federal Communications Commission, and the Surface Transportation Board.

These agencies are “independent” in large part because the President cannot remove their leaders at will. Unlike Cabinet officers, who serve at the pleasure of the President, a member of an independent agency generally may be terminated only for cause. For example, the President may fire a member of the Federal Trade Commission only “for inefficiency, neglect of duty, or malfeasance in office.” The Supreme Court has extended this limitation on the President’s removal power to independent regulatory agencies whose leaders lack explicit statutory protections. Thus, the President cannot simply replace an agency’s members because he disagrees with their judgments on policy matters. This restriction on the President’s power remains controversial to this day, and some leading legal scholars contend that the Constitution does not permit Congress to create agencies that exercise executive power but whose leaders are independent from the President. But the Supreme Court has long rejected this view.

In recent years, whether independent agencies are sufficiently independent has been called into question. For example, in 2014, as the Federal Communications Commission (FCC) was contemplating how to react to a court decision invalidating its net neutrality rules, the White House ran an “unusual, secretive” campaign to “implor[e] the FCC to ‘reclassify consumer broadband service under Title II’” of the Communications Act. A Senate investigation found that the White House exerted disproportionate influence over the FCC, potentially contributing to the agency’s decision to depart from its original plan to adopt a “lighter regulatory touch” governing “retail transactions” on the Internet.

The President-elect will have the opportunity to appoint dozens of men and women to serve on independent agencies and decide who chairs each multi-member body. This process has real consequences—it is often said in Washington, D.C., that personnel is policy. However, the next administration should respect the autonomy of independent agencies by allowing them to do their jobs without attempting to end-run the administrative process by pressuring members behind closed doors to do the President’s bidding.

Preserve federal records and err on the side of disclosure upon receipt of Freedom of Information Act requests.

President Obama famously declared in 2013 that his was “the most transparent administration in history.” And on his first full day in office, he issued a memorandum to the heads of departments and agencies directing them to respond to Freedom of Information Act (FOIA) requests with the presumption that “[i]n the face of doubt, openness prevails.” Yet in practice, the administration was often less than forthright in disclosing documents pursuant to FOIA requests—and in several cases, officials failed to respond to FOIA requests in good faith. As a federal judge recently held in an opinion regarding a lawsuit brought by CEI against the Office of Science and Technology Policy (OSTP), the agency’s “representations in this case about the scope and completeness of its searches have been, to say the least, inconsistent. Those inconsistencies have created a real question in the court’s mind … about Defendant’s good faith in processing Plaintiff’s FOIA request.” And in another case, a federal judge criticized the Environmental Protection Agency for its “suspicious” handling of a FOIA request filed in 2012 by the Landmark Legal Foundation.

The next administration should do more than merely give lip service to transparency—it should actively encourage it, not only via memoranda but also by punishing any agency officials who serve at the pleasure of the President yet do not faithfully adhere to FOIA’s requirements. Moreover, officials should ensure they abide by the Federal Records Act, which requires agency employees to preserve and maintain federal records—whether in paper or electronic form—and forbids employees from removing or destroying federal records.