//  1/16/18  //  Commentary

UC Hastings College of the Law in San Francisco, where I teach, hosted an excellent conference late last year on “Deregulatory Frontiers:  Examining Deregulation in the Trump Era” that may be of interest to Take Care readers.  There were panels on environmental protection, public health, healthcare, and financial regulation.  I gave an introductory talk on “Deregulation:  Past, Present, and Future.”

In the talk, I tried to highlight some relevant features of the current political context and some key legal restraints on executive deregulatory action.  You can watch the whole thing here, but I thought I’d summarize the key points in a post.

Deregulation in the Past Two Administrations

President Trump, like his Republican predecessors, is a proudly deregulatory president.  His administration has acted in various ways to reduce effective legal restraints on private activity.

This is nothing new for a Republican president.  What may be more surprising is that President Obama was also in some ways an aggressively deregulatory president.  At least two of Obama’s signature initiatives—his immigration initiatives, DACA and DAPA, and his marijuana enforcement policy—were effectively deregulatory actions.  They aimed to strip force from existing statutes and change on-the-ground realities without any change in the underlying statutory restrictions.

Seeing two presidents who are different in so many ways both using their power aggressively to relax legal burdens seems to me to suggest some structural explanation that goes beyond the particular personalities involved.

Political Context

What might that explanation be?  The key factor, I think, is increasing political polarization.  As political scientists have documented, the electorate is sharply divided and in consequence congressional voting behavior is highly polarized along party lines.

By making legislative deals more difficult, this polarization probably diminishes Congress’s overall legislative capacity.  To the extent Congress can’t deliver on electoral promises, pressure likely increases on the President to try to do so unilaterally.

In addition, there’s some reason to think this environment might push Presidents themselves to take more extreme positions.  Presidents appear to target policies not only at swing voters but also at key constituencies within their party—and the median member of each party coalition is further and further separated from the other side’s median voter.

Situational Legalism

Compounding these inter-branch dynamics, I think the polarized political environment has pernicious effects on public debate.

Given current levels of negative partisanship, almost everyone in the country, including most commentators and opinion-leaders, is what one might call a situational legalist.  People care about the niceties of procedure and legality and legislative and executive roles when it suits their substantive preferences, but not when their team is winning.

I think it’s important for legal commentators to resist this tendency (difficult as that may be), so in that spirit I tried to identify three key legal restraints on deregulatory executive action.  These three principles seem to me to correct, valuable, readily capable of symmetric application across administrations, and yet under potential stress due to negative partisanship.

Three Key Legal Restraints

1.  Presidential Dependence on Officers

The first key restraint is the President’s obligation to act, in most instances, through other government officers.

This is partly just a practical imperative.  But there’s also a legal dimension to the issue.  Congress can vest particular authorities in particular offices, and in that case only those officers, and not the President himself, can exercise those powers.

This structure matters not only because it makes the Senate confirmation process more meaningful, but also because it allows power to flow in towards the White House or away from it according to political exigencies.

Under normal circumstances, cabinet secretaries don’t need to be told twice to do something.  But if you have an unpopular Chief Executive, office-holders are likely to have more room to set policy independently from the President.

This structure also enables what I called in an earlier post the “fire alarm function” of office holding.  If the President directs an officer to do something they consider illegal or unwise or disruptive, they can quit instead and thereby elevate the issue’s political salience.

2.  Symmetry Between Regulation and Deregulation

A second key constraint is that, in general, deregulation requires the same process as regulation.  Repealing a statute requires another statute (or at least some statutory repeal authority), and repealing a regulation requires another regulation.  Presidents and their subordinates can’t just repeal statutes or substantive regulations because they don’t like them.  They have to use the prescribed process.

With respect to statutes, this principle is a bedrock constitutional requirement rooted in the Take Care Clause.  With respect to regulation, this view took hold during the 1980s when courts rejected arguments from the Reagan Administration that deregulatory action should be less procedurally constrained than regulatory action.  (As I discuss in the talk, two individuals with entwined fates, future Justice Antonin Scalia and future Judge Merrick Garland, were key participants in this debate at the time.)

This principle is an important source of legal stability.  The Trump Administration has in fact tried to cancel a number of regulations (including environmental rules and contraceptive coverage requirements) without going through the notice-and-comment procedures required for a new regulation, but courts have said no.  I think this is also the right way to understand what the Fifth Circuit did by blocking the DAPA immigration program during the Obama Administration.

3.  Revocability of Informal Guidance

That, though, brings me to a last key restraint.  One consequence of preventing unilateral repeal of statutes or regulations is to channel deregulatory political pressures instead into putatively non-binding enforcement policies.

This type of action is much harder for courts to police, because courts cannot properly take over agencies’ enforcement functions.

What’s left instead is another essential limitation, which is that the policy is revocable.  A future administration—or even the same one if it chooses—can reverse the policy and resume enforcement of substantive legal requirements, even as to conduct undertaken while the permissive policy was in effect.

Doing so may be unfair, even cruel, because regulated parties may rely on past policies of leniency in organizing their lives.  Even so, in general, the law can’t protect this sort of reliance because doing so would eliminate the central limitation on this sort of policy—that executive officials can’t eliminate statutes or regulations simply by promising not to enforce them.

This point is important because a number of anti-Trump lawsuits have asserted that various Obama-era polices can’t now be undone for one reason or another.  The key example is the DACA lawsuits, but variations on this argument also show up in debates over ACA subsidies, transgender military policy, and reversal of national monument designations.

These cases often involve other issues as well, including important equal protection questions.  But it’s worth remembering that those opposing Trump in court today may well be pushing to reverse many of his policies and resume enforcement of neglected laws in the next administration (whenever that comes).  Courts need to be careful not to set precedents today that could complicate vindicating the rule of law tomorrow.

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Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

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Zachary Price

U.C. Hastings College of the Law

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A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.