As Neil Gorsuch is sworn in to the Supreme Court, liberals are still teeming with anger over Merrick Garland being denied that same seat at the hands of Senate Republicans.
However, many on the legal left are hoping the jilted Obama nominee can still play a role in thwarting one of the central thrusts of President Donald Trump’s policy agenda: what top Trump adviser Steven Bannon famously called “the deconstruction of the administrative state.”
As Trump presses to roll back regulations across the federal government — formally vowing to dismantle two rules for every new one issued — an article Garland wrote more than three decades ago has emerged as a kind of playbook for those plotting the legal resistance to Trump’s campaign to unwind regulations aimed at protecting the environment, workers’ rights and more.
The 1985 article in the Harvard Law Review, penned as the Reagan administration’s deregulation initiative was gathering steam, emphasized the duties of courts to take a “hard look” at attempts to revoke federal rules. Garland argued that agencies revoking regulations must have at least as good a basis for killing a rule as they did for issuing it — and that the action be consistent with congressional intent.
“The hard look demands that the agency show that the course it chose was reasonable in light of the relevant policies, alternatives, and facts,” Garland wrote.
Another legal expert said there are unmistakable parallels between the Reagan-era deregulation effort Garland helped resist in the courts and the one Trump is embarking upon.
“This is the world we are about to enter,” said Paul Verkuil, a leading authority on the federal rulemaking process. “You have to be able to justify your decision to end a regulation. … [Garland] pretty much knew what he was talking about. It was a dramatic and important article which got a lot of play.”
While Garland failed to make it to the Supreme Court, he will still wield significant authority over the Trump agenda from his current post as chief judge of the D.C. Circuit, a position he’s slated to hold until 2020. Indeed, news stories from the Reagan era described the Washington-based federal appeals court as a key obstacle to that administration’s regulatory agenda.
Colleagues said they expect Garland to be highly engaged when challenges to Trump’s deregulatory moves begin to come before the court.
“What I can say about it, is he would give it exacting and careful scrutiny,” said Jack Quinn, a White House counsel under President Bill Clinton. “I’d be willing to say there’s nobody who’s more knowledgeable about this area of the law.”
While the Supreme Court sets the broad rules for the deregulatory process and takes up some of the most high-profile cases, the nitty-gritty of applying those rules to individual agency actions is done by the D.C. Circuit. Often, it’s the only court to review what agencies have done.
“That’s why the D.C. Circuit is commonly referred to as the second most important court in the country,” Quinn noted. “It’s where the vast bulk of cases involving agency action are taken up.”
Garland declined several requests to comment for this article.
However, during an argument he presided over late last month in a campaign finance case, the D.C. Circuit chief made clear he was concerned about the slippery slope of dismantling Federal Election Commission rules.
“The question is how much of the entire structure collapses if we accept your position,” Garland told an attorney pressing to loosen donation limits. “The rule of law requires me to apply the same logic in the next case that I apply in this case.”
Garland’s 1985 article, one of just two full-length law review articles Garland wrote before being confirmed to the bench in 1997, stemmed from his personal involvement in a high-profile Supreme Court case on deregulation that is still routinely cited in courts, including his.
In that high court showdown, Garland was one of the key lawyers for State Farm insurance company in its challenge to the Reagan administration’s revocation of a Carter-era requirement that new cars have air bags or automatic seat belts.
Garland “was the intellectual center of gravity in that case on the plaintiff’s side,” recalled Quinn, who was on the same litigation team. “He really did have an incredibly important role.”
In its 1983 ruling, the justices unanimously held that agency deregulatory actions were subject to substantive scrutiny by the courts, just as new regulations are. The court also took another important step, emphasizing that while agencies could change their minds about the value of a particular regulation, they could not ignore evidence they considered when putting the rule on the books in the first place.
“An agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance,” Justice Byron White wrote.
Trump has several ways available to him to counter or elude efforts in the courts to block his deregulation plans. And he’s already using some of them.
First, Trump is signing targeted pieces of legislation that knock out regulations the Obama administration put on the books in its final months in office. He’s already signed 11 of these Congressional Review Act resolutions and has two more sitting on his desk.
With health care legislation stalled, Trump aides are billing this as the president’s most significant legislative achievement in his early days in office.
“I think that this is a huge accomplishment in the first quarter,” White House legislative affairs director Marc Short told reporters last week, claiming that the repealed Obama-era regulations will save the U.S. economy $10 billion over the next 20 years.
“It’s fulfilling a campaign promise,” Short added. “We said this is something that is crippling the American economy and we’re going to address it, and this is one of the vehicles through which we’re addressing it.”
Another way to roll back existing regulations is through a tactic known as “sue and settle.” Some Obama rules and policies are already under challenge in the courts by business groups and conservative organizations. The Trump administration could acquiesce in the litigation, essentially allowing the courts to tie the government’s hands.
A third way is to simply ease up on enforcing the regulations. This kind of laxity is harder for liberal public interest groups to respond to, but it also has its limits. As long as rules are on the books, most reputable businesses are going to try to follow them. So, taking a more casual approach to enforcement won’t give the same kind of relief for business that the Trump administration is seeking.
However, lawyers say the centerpiece of Trump’s executive order on deregulation — the two-for-one requirement — gives plenty of fuel to legal challenges to any moves agencies make to roll back environmental, worker safety or other rules. It allows plaintiffs to claim that the revocation was done primarily to satisfy Trump’s numerical quota.
“That order is unconstitutional, illegal and stupid,” said Georgetown law professor and former top Federal Trade Commission official David Vladeck. “If you really want to reduce the regulatory load, you can’t use a shotgun, you have to use a scalpel.”
Garland’s 1985 article notes that one court was suspicious about the seat-belt-related order in part because the White House press office issued a statement saying it was intended to help the auto industry. But auto regulators claimed the detachable automatic belts would be ineffective.
One lawsuit challenging Trump’s executive order, and citing the case Garland was involved in, is already working its way through the courts, and more are expected. As those cases head to Garland’s court, some lawyers expect rough sledding that will, at a minimum, slow down Trump’s deregulatory drive.
“That actually is a hard road,” said Wake Forest University law professor Sidney Shapiro. “If you hit a hostile court, they’re going to find holes.”
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