My guess is that the Trump Transition Team is feeling pretty overwhelmed right now, so I’ll keep this initial post short and sweet. But I did want to share a few thoughts on the regulatory state that may be of value to the Transition Team as they identify key political appointees and first priorities for reforming the Fourth Branch. I do so from the perspective of an administrative law and regulation professor who previously did a short stint on the Justice Department’s Civil Appellate Staff, clerked for two federal judges, and worked in private practice representing clients as they navigated through the regulatory process. (Full disclosure: From time to time I continue to represent clients, including the U.S. Chamber of Commerce and other trade organizations, in cases that touch on federal regulation and administrative law.)
First, as my co-blogger Emily Bremer mentioned on Monday, please check out this short report from the American Bar Association’s Section of Administrative Law and Regulatory Practice that you should have received earlier this week before the election results came in. This report was unanimously approved by a very diverse group of adlaw experts on the ABA AdLaw Council. These recommendations are noncontroversial but critical for a successful transition. (I speak from personal experience, as I serve on the Council and participated on the committee that initially drafted the report.) The recommendations cover a broad variety of topics from the transition team and appointment practices to improvements to agency adjudication, rulemaking, retrospective review, and the Administrative Procedure Act. We will be blogging in more detail about each recommendation in the coming weeks. Also, I think I can speak for the ABA AdLaw Council and Section that you should definitely consider us a resource. We’d love to share our collective experience as you navigate through this transition.
Second, as you think about initial reforms to the administrative state, definitely leverage the incredible resources at the Administrative Conference of the United States (ACUS). This is a federal agency that examines the regulatory state and makes recommendations to Congress, the President, federal agencies, and the courts. A Conference of 100 experts in administrative law votes on these recommendations. Most of these recommendations are noncontroversial, yet critical improvements to federal administrative law—the types of initiatives that would be a terrific way to build on consensus while creating meaningful change at the outset of the new administration. (Again, I speak from experience, as I have served as an academic consultant on one project and now serve as one of the forty public members of the Conference.)
While we’re on the subject of ACUS, please appoint a new Chair for the Conference as soon as possible. President Obama has already nominated a terrific Chair in Matt Wiener. Wiener is supremely qualified, and would make an excellent Chair even under a Republican administration based on his diverse experience with the federal regulatory state. But whoever the new administration identifies as the potential next ACUS Chair, please do so quickly, as it’s vital that ACUS continues its important work of helping the administrative state work more effectively.
Third, you will no doubt be flooded with grand proposals to completely rethink the federal administrative state, ranging from eliminating certain federal agencies and programs to getting rid of judicial deference doctrines and reinvigorating the nondelegation doctrine. Some of these bold proposals may well merit close consideration in the first few years of the new administration. But during the transition and the initial months thereafter, I hope you’ll focus on selecting people and prioritizing reforms that can at least move us incrementally toward a more liberty-enhancing bureaucracy. ACUS has made a number of these recommendations, including an important set of recommendations it will consider next month on how to reform agency adjudication. In a short essay over at the Law and Liberty Forum, I outline a number of other realistic, incremental changes to curb the administrative state.
We now live in a regulatory world, where the bulk of federal lawmaking takes place at the bureaucratic level. Federal agencies—through rulemaking, adjudication, and other regulatory action—have arguably become the primary lawmakers. This generally has not been a good thing for liberty. There are a number of realistic, incremental changes that can be made. Some of these deregulatory and liberty-enhancing reforms can be implemented by courts, though most require legislative action. Some, however, can be implemented via executive action. I hope the Transition Team will identify political appointees and policy priorities with a focus on these types of initial incremental reforms.