The Trump administration, said White House chief strategist Stephen Bannon at a conservative political conference in February, is caught in a pitched battle for the “deconstruction of the administrative state.” For those wondering what, exactly, that means, they should pay attention to the woman Donald Trump just nominated to oversee his administration’s entire regulatory apparatus.
Neomi Rao is a former law clerk to Justice Clarence Thomas and a professor at the law school that was recently renamed after the late conservative icon Antonin Scalia. She’s also a leading conservative voice in favor of pushing the courts to tamp down on labor, environmental and other regulations advanced by agencies within the executive branch.
Trump has, in other words, selected a regulatory czar who isn’t just hostile towards regulation, but who wants to place permanent limits on future administrations’ ability to regulate. Though many of the most radical changes she advocates would need to come through the courts and not the office she’s been nominated to lead, if her views take hold it could become extraordinarily difficult for liberal presidents to govern even if they are swept into office with a commanding mandate.
“The most important office in government you’ve never heard of”
To explain, many federal laws lay out a broad policy goal, but delegate the task of determining many of the details of how to implement this goal to a federal agency. The Clean Air Act, for example, instructs the EPA to determine “the best system of emission reduction” that is both cost effective and feasible given existing technology, and to set standards ensuring that certain polluters achieve similar levels of reduction.
Laws are drafted this way for several reasons. Agencies employ experts with deep knowledge on the subjects that they regulate, while Congress rarely possesses such granular knowledge. Congress is also a slow-moving body that, especially recently, has trouble performing very basic tasks like keeping the government open. But technology changes rapidly, as do prevailing business models within a regulated industry. Agencies are able to adapt relatively quickly to these changes to ensure that current policy still aligns with the goal announced by Congress.
If Congress wants coal plants to use “the best system of emission reduction,” for example, it cannot achieve this goal unless the regulations governing such plants adapt as new ways of reducing emissions are discovered.
Each agency typically has its own officials who determine how and when to regulate, but the White House also has an office—known as the Office of Information and Regulatory Affairs (OIRA)—which oversees the entire regulatory process across nearly all federal agencies. Trump nominated Rao to lead up OIRA.
Cass Sunstein, who led OIRA for much of the Obama administration, explains that OIRA plays at least as much of a role in coordinating information flow among agencies as it does in imposing its own views on particular regulations. Yet it is also the White House’s primary voice in the regulatory process, and it plays a significant role in shaping regulations across issue areas.
As Leah Litman and Ian Samuel write in a piece critical of Rao’s nomination, OIRA is “often called ‘the most important office in government you’ve never heard of.’”
So who is Rao, exactly?
Currently, Rao directs the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School, a school which, as its name implies, is a haven for conservative legal thinkers. The Charles Koch Foundation recently gave Scalia Law School a $10 million grant, and the school employs a bevy of libertarian law professors who are hostile towards the regulatory state and who’ve offered novel theories aimed at weakening or dismantling it altogether.
Rao authored a law review article calling on the courts to revive a largely defunct doctrine known as “nondelegation,” which could potentially impose strict limits on Congress’ ability to delegate regulatory power to agencies. Though her article is noncommittal regarding just how strictly she would limit this ability, Rao praises her former boss Justice Thomas, who said agencies should be forbidden from making “generally applicable rules of private conduct.”
Under Thomas’ framework, laws like the Clean Air Act simply cannot exist, as their entire structure depends upon enabling agency experts to issue binding rules upon regulated industries. Indeed, it is questionable whether the United States would even be capable of enacting an effective environmental policy under Thomas’ framework.
Rao’s argument for reviving the nondelegation doctrine is a bit complex, but it boils down to a counterintuitive claim that allowing agencies to regulate gives individual members of Congress too much power.
Congress, Rao writes, is supposed to operate as a “collective.” That is, no individual member of Congress has any constitutional authority — each lawmaker can only act by joining together with a majority of their colleagues in both houses of Congress to enact a law.
The existence of regulatory agencies, Rao claims, subverts this design by enabling individual members of Congress to wield their influence over federal agencies. A lawmaker can use “committee oversight, threats to reduce appropriations, investigations of administrative conduct, reporting requirements, and the confirmation process for high-level officials,” as well as informal methods such as communication with agency officials, in order to influence that agency’s regulatory process.
In order to prevent individual lawmakers from influencing agencies in this way, and to restore a system where Congress only acts collectively, Rao proposes that the courts should impose new limits on Congress’ ability to delegate authority to agencies.
It’s an interesting, if fundamentally flawed, argument. Among other things, it’s not at all clear why granting more power to the courts is a solution to what Rao believes to be too-powerful agencies influenced by too-powerful individual lawmakers. Members of Congress do not simply seek to influence the regulatory process, they routinely file briefs seeking to influence judicial decisions. Lawmakers can also threaten courts with reduced appropriations, jurisdiction stripping, and even court-packing.
It is unavoidable that individual lawmakers will try to exert their influence over the other branches of government, and transferring power from the executive to the judiciary will do nothing to stop that — even if stopping it were a desirable goal.
Can Rao be stopped?
Rao’s scholarship suggests that she will be an eager general in Trump’s war on the administrative state. But the particular arguments she’s advanced in the course of that scholarship at least raise the possibility that her nomination can be defeated. After all, Rao’s core argument is that members of Congress — including the senators who will decide whether or not to confirm her — should lose influence. That’s not an argument that’s likely to please many senators.
As Rao notes, our current system enables members of Congress to attempt to “‘rescue’ constituents from regulatory burdens” by raising concerns with the agency responsible for imposing said burden. Some of these rescue efforts are taken on behalf of deserving constituents, frustrated that their concerns went unheard by an agency. Others are taken on behalf of well-moneyed interests savvy enough to hire the right lobbyist. Either way, a lawmaker’s ability to attempt these rescue efforts are quite valuable to that lawmaker.
And yet, one of Rao’s central scholarly projects is stripping lawmakers’ ability to serve their constituents in this way.
To defeat Rao, at least three Republican senators will need to cross over to vote against her nomination. It is unlikely they will be moved to do so because of ideological objections to her anti-regulatory agency, but they might be convinced to do so in order to preserve their own ability to influence the federal regulatory process.
By nominating Rao, Trump seemingly announced his desire to shut senators out of the room where it happens in each federal agency. Perhaps enough of those senators will object to that announcement to scuttle her nomination.