Elon Musk and Vivek Ramaswamy, the co-leaders of President-elect Trump’s Department of Government Efficiency (DOGE), have announced ambitious goals for cutting unnecessary government regulations, an effort in “retrospective review” that is long-overdue.
Our current federal governmental structure is devoted almost exclusively to so-called administrative “experts” developing and promulgating new rules and regulations. But the government never goes back to assess systematically whether existing regulations are actually needed or achieving their stated goals. This uncontrolled expansion of federal regulation is exactly what was foreseen in 1973 in a perceptive but obscure book, The Institutional Imperative, by an experienced Washington lawyer, Robert Kharasch.
There is even a chance that some sensible Democrats might cross party lines to support a freeze on enforcement of … unnecessary federal regulations.
Kharasch argues that the real goal for people in government is not to solve problems, but to maintain the institution and assure the public and the Congress — and I would add, themselves — that the work they are doing is important and worthy of expanded funding. In other words, our current governmental structure does not include any mechanism to declare victory and go home, a situation that predictably leads to uncontrolled growth called “hypertrophy.” As the 19th century polymath, Samuel Taylor Coleridge put it, “Every reform, however necessary, will by weak minds be carried to an excess, that will itself need reforming.”
This critique rings true to my experience as a former General Counsel of one of the worst offenders, the Environmental Protection Agency, as well as practicing and teaching environmental and administrative law at Yale for almost fifty years. As I outlined in a 2012 article in The Atlantic, “The Case for Trimming the EPA,” as the environment had gotten much cleaner over the decades since 1970, EPA has only gotten bigger and its regulations more expensive, complex, and intrusive. The agency has consistently found new and often fewer and less significant problems to justify its existence and expand its funding. (READ MORE from E. Donald Elliott: Are the American People Smart Enough to See Through the Political Theater?)
A good example are the recent draconian regulations I have criticized in these pages that will cost trillions to “clean-up” PFAS, a chemical that hasn’t been proven to cause any substantial harm at low levels. (Note: any chemical with letters for a name is scary to the public.).
However, enter “the resistance” to much needed change. A recent article in The Washington Post quotes George Washington University administrative law professor Richard Pierce arguing that DOGE is a fools’ errand because it will take two to three years plus extensive litigation to get rid of even one existing regulation. To paraphrase Lloyd Benson’s famous rejoinder to Dan Quayle during their vice-presidential debate, “I know Dick Pierce, Dick Pierce is a friend of mine.” Professor Pierce has a valid point but there is a way around it.
The conventional way to get rid of administrative regulations is to revoke them. The Reagan Administration tried to do that with a rule requiring all new cars to have air bags or automatic seatbelts that strapped in their occupants whether they wanted to fasten them or not. The Supreme Court slapped down that previous de-regulatory effort in an (in)famous case taught in every administrative law class, Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983).
That case held, more or less as an unjustified ipse dixit, that in order to get rid of a regulation, an agency had to go through the same process of notice and comment rulemaking and benefit-cost analysis plus judicial review that was used to create it in the first place. That’s what Professor Pierce is referring to when he is quoted as saying that Musk and Ramaswamy are “‘utterly ignorant’ of the realities of federal law, which mandates strict procedures for repealing existing regulations.”
However, a much faster way exists: appropriations riders that forbid agencies and the Department of Justice from enforcing antiquated or unnecessary regulations. As I point out in a forthcoming article in The Harvard Journal of Public Policy, a draft of which is available here, appropriations riders are one of the few tools left to the Congress and the President to reel in the administrative state. As a result of the Republicans’ “trifecta” in the recent elections, they now control not only the White House but also both houses on Congress, although by narrow majorities. As a result, they can probably enact appropriations riders, but even if they cannot, in my experience, agencies typically respect even report language from a single house, which is much easier to obtain that a law passed by both house and signed by the president.
What DOGE should do is solicit nominations from the public concerning existing rules that are unduly burdensome and/or unnecessary. Then, after looking into the claims, DOGE should provide the White House, the Congress and the public a list of those it thinks should be paused immediately. Congressional committees should then hold hearings and enact riders in appropriations bills that prohibit the government spending any more money to enforce those rules while the government decides whether to revoke those rules permanently or simply leave them on the books as “dead letters.” (Admittedly, this may not always be a perfect solution, because a few federal laws, particularly environmental laws such as the Clean Air Act, provide for lawsuits by states and/or private parties to enforce existing rules.)
Ample precedent exists for de-funding as a strategy. For example, in 1972, the Congress in its wisdom — or in this case, lack thereof —enacted the Noise Control Act of 1972, which gave EPA broad powers to regulate noise from all products “distributed in commerce,” which essentially means everything. However, a decade later, in 1982 under the Reagan Administration, Congress de-funded EPA from using any federal funds to enforce that statute in order to return control of noise back to the states, a prohibition that lasts to this day. Thus, while the Noise Control Act technically still remains on the books, it is a dead letter in practice. (READ MORE: Are the Criminal Cases Against Trump Unconstitutional?)
Congress should use one of the few legal devices left to rein in the administrative state, its power of the purse. There is even a chance that some sensible Democrats might cross party lines to support a freeze on enforcement of particularly burdensome or unnecessary federal regulations.
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