Over at Marginal Revolution, Tyler Cowen has a prescient (and scary) post on the “fear of regulatory reprisal from a Trump administration,” drawing on Philip Hamburger’s provocative book—Is Administrative Law Unlawful?—as well as Adrian Vermeule’s ingeniously titled review of the book:No. (Hamburger has since posted a nice parry entitled Vermeule Unbound, alluding to Posner and Vermeule’s The Executive Unbound.)
As Cowen notes in his post, a vindictive President is particularly dangerous because
the regulatory branch reports to the Executive. And if you own a large company, it is virtually impossible to be in accordance with all of the regulations all of the time. If there were a President who wished to pursue vendettas, the regulatory state would be the most direct and simplest way for him or her to do so. The usual presumption of “innocent until proven guilty” does not hold in many regulatory matters, nor are there always the usual protections of due process.
Indeed, as I have noted elsewhere, the focus and function of lawmaking have shifted dramatically from Congress to the regulatory state: In 2013, for instance, the Code of Federal Regulations exceeded 175,000 pages and included tens of thousands of rules. In 2013 alone, federal agencies filled about 80,000 pages of the Federal Register with adopted rules, proposed rules, and notices. By contrast, the 133rd Congress (2013-2014) enacted just 144 public laws for a total of 1750 pages in the Statutes at Large. To appreciate the breadth of power the President can exercise unilaterally via the regulatory state, we need look no further than the executive actions undertaken by Obama and Bush 43 administrations.
Cowen highlights a number of liberty-constricting measures that a Trump administration may consider based on Trump’s comments on the campaign trail—including the FCC banning National Review editors from television, shutting down parts of the Internet, and demonstrating the power of strength like the Chinese government did in response to the Tienanmen Square protests. To be sure, there are statutory and constitutional checks in place that would reign in many of these executive actions; even Chevron deference is not that elastic. But a vindictive President could still utilize the regulatory state as a weapon against those who disagree with him.
Moreover, it is not entirely clear (to me at least) whether President Trump would actually attempt to implement any of Candidate Trump’s excited utterances on the campaign trail. Indeed, it’s probably fair to say that there is a lot of uncertainty about what President Trump would actually do with the administrative state, especially as he seems unconstrained by traditional party politics. Maybe he would surprise us and be a benevolent Regulator-in-Chief. But that uncertainty makes the prospect of his presidency all the more scary from a regulatory prospective, where predictability and reliability are foundational principles.
As we head into Super Tuesday voting today, I want to end on a more optimistic note. Whereas a vindictive President poses grave dangers to American democracy due to executive control over the regulatory state, that same executive power can be marshaled to create a more libertarian administrative state. For instance, the President’s clemency power and ability to exercise prosecutorial discretion can be leveraged to prioritize the enforcement of federal law. Similarly, as I sketched outover at the Liberty Law Forum last month, there are numerous incremental, liberty-enhancing changes that could be made to the regulatory state—many of which could be implemented unilaterally by the next President.
A lot is at stake in this next presidential election, and as Cowen rightly points out, the future of the regulatory state is definitely one of the highest stakes.