Reconstruct the Administrative State

This article is from a cover package of essays entitled Ten New Ideas for the Democratic Party to Help the Working Class, and Itself. Find the full series here.

The impending return of aggressive right-wing presidentialism under Donald Trump is likely to take on a dangerous double character. On one side, those parts of the administrative state that can bring force to bear on Trump’s opponents and his demonized “others”—for example, immigrants and trans persons—may be eagerly deployed as swiftly and cruelly as possible. On the other, when it comes to regulatory agencies that embody progressive values—protecting workers, consumers, investors, small businesses, older Americans, really everyone—Trump has promised “the largest regulatory reduction in the history of our country, and it’s going to happen very fast.”

The hopes of Trump’s supporters to pursue both sides of this agenda depend in no small part on the quiescence of right-wing judges. Trump’s first-term engineering of a conservative Supreme Court supermajority fuels those hopes, having already curtailed the authority of federal regulatory agencies to interpret their own statutory powers. The justices have reserved that power, naturally, to themselves. They have also shown exceptional deference to Trump in hot-button cases on presidential authority. Trump’s cabinet appointees and advisers like Elon Musk and Vivek Ramaswamy aim to enlist the Court, along with a GOP-controlled Congress, in sweeping efforts to assert presidential prerogative and to enable Trump’s policy makers to gut their predecessors’ regulatory handiwork.

Any plausible strategy for checking the worst excesses of the next Trump administration will incorporate a critical role for administrative law. After all, when Trump ran in 2016, he also promised a vast campaign of deregulation. Yet as the Monthly reported in spring 2024, that effort to cut red tape was largely unsuccessful. Though Trump had pledged to remove two regulations for each one his administration added, the overall number held steady or increased slightly.  Moreover, as shown in a study by Bethany Davis Noll, litigation director for the Institute for Policy Integrity, the first Trump administration’s overall success rate in court in defending legal challenges to his agency actions was 23 percent. The win record of prior administrations was approximately 70 percent. 

Litigation, however, will not be enough to undo second-administration Trumpism. That’s in large part because conservatives have a multidecade head start in shaping the information environment and building the policy and legal infrastructure for their antiregulatory, Christian nationalist juggernaut. Over the past 50 years, they assembled a unified movement with many interlocking components—Republican presidents going back to Ronald Reagan; conservative think tanks like the Heritage Foundation; corporate money from the likes of the Koch brothers; judges and legal scholars bound by allegiance to the Federalist Society; and right-wing media like Rush Limbaugh and Fox News.

During that time, nothing of comparable ambition occurred on the left. To be sure, different sectors of the progressive coalition stood up impressive efforts to advance specific regulatory programs important to their constituencies—environmentalists fighting to strengthen clean air regulations, for instance, or labor unions mobilizing to improve workplace safety rules. But there was no coordinated effort across the coalition, and certainly no comparable funding by foundations and progressive donors, to undergird a politically bold, intellectually compelling, values-driven reinvigoration of the regulatory state. At this juncture, it therefore becomes critically important not only to attend to the impressive array of legal tools that administrative law has to offer in curbing Trump, but also to position the progressive legal strategy within a much larger campaign for hearts and minds. 

Where administrative law can be most helpful is demanding that formal government actions, such as agency regulations or adjudicative orders, meet requirements for legal authority, reasoned explanation, and factual support. Law can stop bad administrative moves that lack these qualities. Such a speed bump role is critical in facing both sides of the Trump agenda. There will be aggressive new rules and orders targeting Trump’s political opponents, disfavored business interests, and marginalized groups. Most will be subject to judicial review. As for deregulation, under the federal Administrative Procedure Act, any rescission of or amendment to a current regulation also counts as a positive “rule.” Deregulatory rules can thus be required to meet the law’s exacting demands for evidence and justification.  As I mentioned in a recent essay, it was a deregulation case that is now the canonical precedent for so-called hard-look judicial review of administrative action—that is, judicial scrutiny of agency regulation to ensure that rules are rationally based on legally and factually relevant factors and clearly explained in a manner that takes due account of significant objections and plausible alternatives. That case, Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., grew out of the Reagan administration’s attempt to withdraw the Carter administration requirement for passive restraints in new cars. The Supreme Court unanimously held the rescission invalid because the agency’s justification for repeal was inadequately explained.

And this is not ancient history. Citing the airbags case, a federal district judge in early December set aside a 2020 regulation issued by the Department of Agriculture’s Animal and Plant Health Inspection Service under Trump. According to the plaintiffs—growers of organic or otherwise non–genetically engineered crops—the deregulatory rule “effectively abandoned federal government regulation of [genetically engineered] organisms,” thus eliminating adequate safety protections and other appropriate oversight. The court faulted the APHIS for inadequately explaining its regulatory change and vacated the rule.

The Musk-Ramaswamy deregulation blueprint anticipates that Trump agencies can persuade courts that any number of relevant regulatory statutes do not authorize the initiatives of prior presidents that Trump now seeks to roll back. But as I noted recently for the Monthly, the Supreme Court specifically rejected that reasoning when it abandoned so-called Chevron deference to agency legal interpretations. In that case, Loper Bright, it wrote, “We do not call into question prior cases that relied on the Chevron framework.” Beyond that, an aggressive Trump push for deregulation is going to run into a series of inconvenient truths. The Court’s overturning of Chevron, long a pet cause for legal conservatives, now works against Trump. The burden will be on the Trump administration to defend its narrower readings of agency authorizations as the best readings of those statutes, not just permissible readings, as under Chevron.

Likewise, the major questions doctrine (MQD)—a tool eagerly embraced by the right for challenging “unheralded” and “transformative” agency initiatives based only on insufficiently specific statutory language—is now a hurdle that Trump agencies must jump. Exercises of statutory authority subject to MQD analysis may be regulatory, deregulatory, or a mix of both. For example, Trump’s ambitions for converting a civil service largely insulated from electoral politics into his personal cadre of apparatchiks will be a prime target for an MQD challenge. Civil service laws give presidents broadly worded authority to make changes to the “competitive service.” But such language was never intended to enable presidents to eviscerate a civil service system designed to promote professionalism and deemphasize political loyalty. If the MQD is deployed faithfully, courts will deny Trump power to broadly repoliticize the hiring and firing of civil service professionals absent explicit, specific statutory language conferring any such authority. 

Perhaps most importantly, virtually every significant regulation issued since 1981 has had to run a gauntlet of cost-benefit analysis at the OMB’s Office of Information and Regulatory Affairs. Trump agencies now arguing that their predecessors acted in an arbitrary and capricious manner can be required to try to persuade courts that their predecessors’ analytic handiwork should be ignored. This may prove an uphill job for Trump’s minions. According to a leading administrative law scholar, Richard Pierce, OMB cost-benefit analyses show that “the average rule has benefits that are six times greater than its costs.” According to Pierce, “that is one of the main reasons why Trump was so unsuccessful in his prior deregulatory efforts” during his first administration. 

Pierce’s insight begins to point the way to a much larger strategy for reenergizing the movement for regulation in the public interest. GOP politicians—often with Democratic acquiescence—have indulged in a myth that regulation is inevitably bad for the economy. (See “The Libertarian Who Accidentally Helped Make the Case For Regulation,” April/May/June 2018.) Yet regulations are often a boon to business, not a drag, because they set a level playing field for entrepreneurs. In the recent case involving genetically engineered organisms, for example, it was precisely the complaint of the farmers challenging deregulation that weakening USDA oversight of genetically modified plants was increasing the risk of contamination to nearby organic and other non–genetically engineered farming operations. New regulations can also create new opportunities, generating new jobs and preventing innovation-stifling abuse by incumbent companies. In these ways, well-designed regulations can actually help to promote dynamism and growth. (See “Deconstricting the Administrative State,” June/July/August 2017.)

Progressives need also to highlight how regulation can enhance freedom. Regulations protecting consumers and investors allow us to lead less anxious, more confident lives without having to devote extraordinary personal resources to protect ourselves against easily preventable risks. As Senator Elizabeth Warren, mastermind of the Consumer Financial Protection Bureau, once said in a speech: 

Done right, strong, clear regulations protect the freedom of every American. How free would you be if companies were allowed to lie to you about their businesses in order to trick you into investing your life savings in their stock? How free would you be if no one had to wash their hands before they handled your hamburger? How free would you be if companies could pass off little white pills as antibiotics, even if they weren’t?

Finally, a progressive campaign to win the support of the American people needs to emphasize how deregulation is what put the working and middle classes in peril in the first place. Financial deregulation ushered in the Great Recession and a massive transfer of wealth toward the top. Angry voters need to understand that Trump, in pushing for more deregulation, will be imposing more of what’s harmed them, not enhancing their prosperity.

It is essential that affected communities know how the regulatory state helps them, because political organizing can push back on Trumpism in ways that courts cannot. Those of Trump’s assaults on the regulatory state likely to prove most difficult to resist in court will fall within a category of what the law professors Jody Freeman and Sharon Jacobs have called “structural deregulation.” These are self-sabotaging efforts by a hostile administration to undermine governance by “eroding an agency’s staffing, leadership, resource base, expertise, and reputation—key determinants of the agency’s capacity to accomplish its statutory tasks.” Law-based resistance to self-incapacitation is more challenging because it is harder for courts to induce good action than to stop bad action. The pressure most effective at inducing energetic agency performance is more likely to come from voters who benefit from vigorous government. If voters are to play that role, they need good sources of information.

Every regulation weakened and many self-sabotaging attempts to incapacitate federal agencies will have direct adverse effects on identifiable American communities. What is needed is reporting that connects the dots between Washington shenanigans and impacts on people’s lives. A good place to start will be with Biden-era regulations that the new Republican Congress will undo via the Congressional Review Act, just as they did when Trump succeeded Barack Obama. The cost-benefit analyses supporting those rules will tell stories that local reporters and activists should translate into explanations of the real-world consequences of GOP fecklessness.

The year 2025 will not be 2017. Trump is bringing into his administration at least some key officials who will have deeper understanding of the legal instruments and management strategies through which change is leveraged in the executive branch. The right has been preparing for this moment for years. But the networks of journalists, activists, public interest groups, and others opposed to Trumpism—what Benjamin Wittes of the Brookings Institution once called “the coalition of all democratic forces”—is also better prepared. The Trump playbook is familiar. His agenda is fully on view. There will not be a shortage of pro-democracy lawyers willing and able to take on Trump 2.0.

But lawyers alone are not enough. If Trumpist triumphalism is to have its shortest possible life-span, it is necessary that pro-democracy groups, local activists, and as broad a public as possible be engaged in framing a new, more inclusive, and more just path toward actual governmental reform. An unfortunate reality facing the Biden administration and the otherwise extraordinary presidential campaign of Vice President Kamala Harris is that their arguments against Trump too often came across as merely a defense of the status quo. As strong as the U.S. economy may be, millions of Americans have come to believe that the status quo does not work for them. It is not hard to see why.

Trump, J. D. Vance, Musk, Ramaswamy, and their entourage have demonstrated no interest in good-faith deliberation about real reform grounded in the lives of most Americans. Rather, the billionaires leading this charge are seeking to further extend their economic control over the daily lives of ordinary people, so as to squeeze them for every dollar they can get. Administrative law can be a huge help in stymying this oligarchic vision. But it will be just as imperative, if not more so, to use the coming years to organize around a vision of government that can meet the challenges posed by relentless technological, economic, and social change through inclusive, collaborative, and accountable governance.