Harvard Law professor Cass Sunstein has a short list of six factors that people in a Department of Government Efficiency need to consider. It’s worth paying attention to and those who don’t, yet want to deregulate, ignore his list at their (and possibly our) peril.
I won’t repeat the list here. It’s brief.
I will add, though, one important item that Sunstein omits and should not have omitted. To the extent this item is relevant, it makes deregulation much easier than Sunstein suggests.
I wrote about it briefly here.
In “Trump Will Want to ‘Confess Error’“, an op/ed in the Wall Street Journal on November 17, 2024 (electronic version), attorney Chris Horner lays out this 7th item. The title of the op/ed is unfortunate because it probably led many readers not bothering to read because they thought it unlikely that Donald Trump would ever admit an error. I have no idea why they would think that.
But it turns out that the errors that Donald Trump should confess are not his own but, rather, those of others.
Horner writes:
Agencies aren’t permitted to lie about their reasons for imposing a regulation—a doctrine known as the rule against pretext. Yet it happens. EPA Administrator Michael Regan, for instance, has shown a willingness to use authorities unrelated to climate change to force closure of plants to achieve climate goals. This presents the new administration with an opportunity to rein in some of the most egregious Biden-administration overreaches before the rules achieve their intended outcomes.
Trump administration officials will need to review promptly internal agency files to establish the record of pretextual rulemakings and other improprieties. Government lawyers will then need to acknowledge these improprieties in court.
“Confessing error” is the practice by which government attorneys inform a court that the state has legally misstepped and that annulment of an agency’s judgment is warranted. A change in administration philosophy or interpretation is insufficient. But the courts would almost certainly accept a confession of error of law, fact or procedure supported by documents that illustrate the admitted wrongdoing.
In short, if government agencies lied in order to justify certain regulations (and I would bet that there are many such), the Trump administration may not need to go through the detailed steps that Sunstein lists, and quick deregulation would be easier to achieve.
Note: I have no idea how often this strategy has been tried. Possibly Chris Horner has better information.
READER COMMENTS
Peter
Dec 4 2024 at 6:43pm
“In short, if government agencies lied in order to justify certain regulations” … the real way to fix that, which means it don’t happen, is to allow that to be used as an affirmative defense with the proof on the government to prove they were telling the truth, not on the party raising that defense to prove they weren’t. Prisons would empty overnight hence why it won’t happen.
steve
Dec 4 2024 at 8:14pm
Read the linked piece and not really sure what Regan supposedly lied about. Given that regulations are sent out for review and comments by the people affected I doubt that there are lies used to develop regulations very often. What I think you will find is that science and technology change so older regulations based open older science may be incorrect, though agencies are generally updating those.
Steve
TMC
Dec 5 2024 at 11:58am
This seems to be the damning paragraph: “Asked whether he was concerned that a challenge to EPA’s greenhouse gas authority now before the Supreme Court could deal a blow to the agency’s climate ambitions, Regan pointed to progress that could be made under other Clean Air Act and Clean Water Act rules.” Seems he is willing to use anything he can to fulfill his ‘climate ambitions’. Using other regulations not based on climate would be a lie.
steve
Dec 6 2024 at 10:32am
Maybe, but no actual lie is cited.
Steve
Henri Hein
Dec 5 2024 at 1:12am
One thing that strikes me is that you don’t reduce bureaucracy by adding bureaucracy. A whole new department? I’m not holding my breath.
Jon Murphy
Dec 5 2024 at 5:29am
To be clear, the DOGE is not a department, per se. It’s just the name given to these two consultants. They are not part of the Federal bureaucracy, not have any power.
David Henderson
Dec 5 2024 at 9:18am
What Jon Murphy said.
The DOGE is outside the federal government, like the Grace Commission during Ronald Reagan’s first term.
Henri Hein
Dec 5 2024 at 2:52pm
I see, thanks for clarifying that.
Craig
Dec 5 2024 at 8:13am
An aside but DOGE is supposed to exist already, that’s already Congress’ job.
Monte
Dec 5 2024 at 1:05pm
From what I’ve been able to determine, Confession of Error (COE) is an infrequently used legal procedure for fast-tracking regulatory roll-back, but it’s far from automatic. In fact, the Supreme Court has stated that it’s not compelled to accept a COE simply because of an agency’s policy shift by an incoming administration, with several justices expressing strong disapproval for the practice due to the potential for abuse and in spite of the federal courts’ tendency to accept requests by an agency to remand and vacate a regulatory action. What’s more, COEs are not immune to legal challenges.
Bottom line for Trump: “Zeal should not outrun discretion.” – Aesop
Alan Goldhammer
Dec 5 2024 at 4:25pm
The WSJ op-ed is behind a paywall so I don’t know the full text of what Mr. Horner wrote. EPA as with all Federal agencies is subject to the Administrative Procedures Act (APA) and any regulatory proposal needs to be done within that framework. Back when I was gainfully employed in the biotech and pharma industries, I probably coordinated comments from the regulated industry(s) on over 50 proposed rules and maybe an equal number of guidance documents which are not binding in the same manner as regulations. The regulatory agencies have to give ample explanation about why they are proposing the new rule/guidance. I had numerous meetings with regulators during my almost 30 working years and never observed anyone lying about the need for a regulation.
It’s also worth noting that the government published a semiannual regulatory agenda for all agencies (don’t know if this still goes on) and in the days of the paper ‘Federal Register’, this was a huge volume. In the areas I covered maybe only 10-20% of what was listed ever made it into a regulation. All of us who did regulatory work during our careers are well aware of Sunstein’s points and it’s highly doubtful that Musk and Ramaswamy are.
I was around when Vice President Gore was involved in the reinventing government initiative and was invited to the briefing when it was released as there were a lot of biotech things in it. That effort led to a number of regulations being cleaned up and taken off the books. There was a similar effort at the outset of the GW Bush administration, headed up by VP Quale, that has been little commented on (a good friend of mine was a key staffer on that). They also did some good things in my area of responsibility.
McKinneyrogerd@gmail.com
Dec 6 2024 at 9:49am
To understand the scope of the problem, people need to read Philip Hamburger’s book Is the Administrative Law Unlawful and Stansfield Turner’s book on his tour as CIA director Secrecy and Democracy: The CIA in Transition.
I doubt DOGE has any idea how bad the problem is. The only way to change it is to get rid of every federal agency but those authorized by the Constitution. That would not be difficult because every state has the similar agencies. We need to push most federal agencies to the states.
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