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Is Trump Restoring Separation of Powers?

Josh Blackman

Our Constitution carefully separates the legislative, executive,
and judicial powers into three separate branches of government:
Congress enacts laws, which the president enforces and the courts
review. However, when all of these powers are accumulated “in the
same hands,” James Madison warned in Federalist No. 47,
the government “may justly be pronounced the very definition of
tyranny.” The rise of the administrative state over the last
century has pushed us closer and closer to the brink. Today,
Congress enacts vague laws, the executive branch aggrandizes
unbounded discretion, and the courts defer to those dictates. For
decades, presidents of both parties have celebrated this ongoing
distortion of our constitutional order because it promotes their
agenda. The Trump administration, however, is poised to disrupt
this status quo.

In a series of significant speeches at the Federalist Society’s
national convention, the president’s lawyers have begun to
articulate a framework for restoring the separation of powers:
First, Congress should cease delegating its legislative power to
the executive branch; second, the executive branch will stop using
informal “guidance documents” that deprive people of the due
process of law without fair notice; and third, courts should stop
rubber-stamping diktats that lack the force of law.

Executive power is often described as a one-way ratchet: Each
president, Democrat or Republican, augments the authority his
predecessor aggrandized. These three planks of the Trumpian
Constitution — delegation, due process, and deference —
are remarkable, because they do the exact opposite by ratcheting
down the president’s authority. If Congress passes more
precise statues, the president has less discretion. If
federal agencies comply with the cumbersome regulatory process, the
president has less latitude. If judges become more engaged
and scrutinize federal regulations, the president receives
less deference. Each of these actions would weaken the
White House but strengthen the rule of law. To the extent that
President Trump follows through with this platform, he can
accomplish what few (myself included) thought possible: The
inexorable creep of the administrative leviathan can be slowed
down, if not forced into retreat.

Congress Should Cease Delegating Legislative Power to
the Executive Branch

The Federalist Society for Law & Public Policy Studies is the
leading organization for conservative and libertarian lawyers
interested in the current state of the legal order. I joined when I
was in law school, and I frequently speak at their events.

Every November, the Federalist Society holds its annual meeting
in Washington, D.C. But this year, the gathering had a highly
unusual dynamic. It is common for scholars to criticize Congress
for delegating its power to the executive branch, a violation of
what is known as the non-delegation doctrine. It is unprecedented
for the executive branch to share that concern. In a keynote
speech, Don McGahn, who serves as White House counsel, lamented the
fact that Congress gives the White House too much power.
“Often Congress punts the difficulty of lawmaking to the executive
branch,” he said, “then the judiciary concedes away the judicial
power of the Constitution by deferring to agency’s interpretation
of what Congress’s vague statutes.”

Several of his officials
are working to contain the administrative state.

One would think that a lawyer for the president would relish
this abdication by Congress and the courts. But no. Instead, McGahn
praised a recent concurring opinion by Justice Thomas, in which
Thomas “called for the non-delegation doctrine to be meaningfully
enforced” to prevent the “unconstitutional transfer of legislative
authority to the administrative state.” Again, reflect on the fact
that if Justice Thomas’s position gained four more votes, much of
Congress’s legislation — which carelessly lobs power to the
White House with only the vaguest guidelines — would no
longer pass constitutional muster.

Though, to be frank, there is no need to rely on the Supreme
Court to enforce the non-delegation doctrine. The president has the
power to veto half-baked legislation. (Recall what Speaker Nancy
Pelosi said of Obamacare: “We have to pass the bill so you can find
out what is in it.”) If Trump returned a bill to Congress, stating
in his message that it failed to include sufficient guidelines,
there would be a paradigm shift in Washington, D.C. Both
Republicans and Democrats would have to go back to the drawing
board and relearn how to legislate with more precision. This
process would strengthen the rule of law. Or Congress could simply
override the veto and reaffirm that it has shirked its
constitutional responsibility and could not care less about what
this president, or any president for that matter, actually
does.

The Executive Will Stop Depriving People of Due Process
of Law without Fair Notice

The problems of the administrative state extend far beyond
Congress’s delegations. During his address, McGahn deplored the
very bureaucracy his boss presides over. “The ever-growing
unaccountable administrative state,” he warned, “is a direct threat
to individual liberty.” To be sure, the president cannot remove the
heads of so-called “independent” agencies, such as the Federal
Trade Commission or the Securities and Exchange Commission. Over
the rest of the executive branch, in theory at least, the president
should have complete control. But such is not the case. Over a half
century ago, Justice Robert H. Jackson observed that the
administrative state had grown into a “veritable fourth branch of
the Government, which has deranged our three-branch legal
theories.” Citing Jackson’s wisdom, McGahn explained that the
administration will take steps to rein in this unruly power. “The
Trump vision of regulatory reform,” he said, “can be summed up in
three simple principles: due process, fair notice, and individual
liberty.”

Generally, when an administrative agency wants to affect a
person’s liberty or property, it must go through a fairly
complicated and cumbersome process that seeks public input.
(Whether or not that input makes any difference is a different
story.) However, in recent decades, administrations of both parties
have sought to bypass this process through the use of so-called
“sub-regulatory actions.” By issuing memoranda, guidance documents,
FAQs, and even blog posts, agencies have avoided the need to
formalize their rules. Yet they still expect Americans to comply
with these transitory documents or face ruinous fines or even
litigation. In particular, during the Obama administration, the
Department of Education used “Dear Colleague” letters to deprive
students of due process on college campuses. McGahn called these
missives “Orwellian.” And he’s right. In September, Betsy DeVos,
the secretary of education, rightfully rescinded these guidance
documents, announcing that “the era of rule by letter is over.”

More recently, in another speech at the Federalist Society
meeting, Attorney General Jeff Sessions announced that his agency
will cease issuing guidance documents that effect a change in the
law. Under the leadership of Associate Attorney General Rachel
Brand, who also spoke at the convention, the Justice Department
will review existing guidance documents and propose modifying or
even rescinding some. “This Department of Justice,” Brand said,
“will not use guidance documents to circumvent the rulemaking
process, and we will proactively work to rescind existing guidance
documents that go too far.”

This is a remarkable and refreshing position, as it
retroactively and prospectively constrains the ability of the
Justice Department to expand its own authority. Depending on how
rigorous the review of past guidance documents is, we could
actually see a contraction of the administrative state. In
Federalist No. 51, James Madison wrote of the “great
difficulty” in framing a government: “you must first enable the
government to control the governed; and in the next place oblige it
to control itself.” Here, the DOJ is tying itself to the mast to
prevent further erosions of the rule of law.

No doubt, this process will be met with resistance from within,
as bureaucrats tend to protect their ossified levers of power. An
energetic executive, however, can clear out what McGahn referred to
as “regulatory sediment.” As it stands now, this policy applies
only to the Department of Justice. It could be expanded to reach
the entire executive branch, under the auspices of the little-known
but powerful Office of Information and Regulatory Affairs. Neomi
Rao, who heads OIRA, suggested during the Federalist Society
convention that such a review could be implemented for independent
agencies as well. (Christopher DeMuth wrote about this proposal in
the Wall Street Journal.) Though the Supreme
Court has held that the president lacks the power to remove the
heads of these commissions, there is an open question about the
extent to which the president can control their regulatory
agenda.

Courts Should Stop Rubber-Stamping Regulations That Lack
the Force of Law

There is one final but imperative aspect of the Trumpian
Constitution: the judiciary. During the 2016 campaign,
then-candidate Trump released a list of possible nominees to fill
Justice Scalia’s seat. At the time, I wrote on NRO, “I have expressed my serious doubts about
Mr. Trump’s vision of constitutional law, but so long as he sticks
with this list, I remain cautiously optimistic.” Stick with the
list he did, and then some. In addition to his nomination of Neil
Gorsuch to the Supreme Court, the Trump administration has set a
modern-day record for the number of district- and circuit-court
judges confirmed in the first year. More important, the White House
is not taking any chances with these picks. McGahn noted that “they
all have paper trails, they are sitting judges, there’s nothing
unknown about them. What you see is what you get.” And there has
been a pervading philosophical consistency to these nominees.
McGahn stated it bluntly: “We are committed to nominating and
appointing judges that are committed originalists and textualists.”
In a not-too-subtle jab at Chief Justice Roberts, McGahn noted,
that his office is seeking judges who “possess the fortitude to
enforce the rule of law without fear of public pressure,” for
“judicial courage is as important as judicial independence.” Trump
is looking for “strong and smart judges.” (In 2015, Randy Barnett
and I offered similar guidance to improve the judicial
selection process).

These criteria will, by necessity, exclude the sort of judges
who would rubber-stamp vague delegations of authority enforced by
guidance documents that lack the force of law. “The greatest threat
to the rule of law in our modern society,” the White House counsel
argued, “is the ever-expanding regulatory state and the most
effective bulwark against that threat is a strong judiciary.” To
McGahn, “the Court should view agencies’ claims of sweeping
authority with skepticism, not nonchalance in the first step to
preserving individual liberty in the face of the burgeoning federal
Leviathan.”

Recruiting judges who share these beliefs will no doubt promote
a more active judiciary, quite the opposite of the longstanding
— and vapid — mantra of judicial “restraint.” Indeed,
three decades ago, the Reagan administration championed the
so-called Chevron doctrine, whereby judges will uphold the
executive branch’s reading of an ambiguous law so long as that
reading is “reasonable” (that is, not arbitrary). The Trump
administration has now called for ending the Chevron
doctrine and eliminating this judicial abdication. By making such
strong nominations, the president has taken proactive steps not
only to limit its own power, but also to institutionalize
restraints on future presidents who may see things very
differently.

Look no further than Justice Gorsuch. In his address to
2,000-plus members of the Federalist Society packed into Union
Station, the junior justice celebrated that “originalism has
regained its place and textualism has triumphed.” The 50-year-old
declared, “neither is going anywhere on my watch.” Providing a
roadmap for the years and decades ahead, Gorsuch recalled that the
courts have “managed to reenter the field of regulating interstate
commerce,” an area long thought to be beyond the judicial
competence. “Why can’t they reenter the field of delegation?”
Gorsuch asked. “Our founders did not approve of lawmaking by
bureaucrats by fiat,” he noted. There is a danger, Gorsuch warned,
when courts “combined delegation and deference.” He’s right.
Deference only works when Congress — and not the executive
branch — is in charge of the lawmaking process.

I still harbor deep concerns about the rule of law in America
today. As reflected solely by President Trump’s Twitter feed, I
worry about his inappropriate attacks on the judiciary, calls for
the prosecution of his political opponents, taunts of foreign
dictators, delegitimization of the press, and failure to address
sexual and other improprieties in his own party, to say nothing of
our stark policy differences. With respect to the separation of
powers, however, if the Trump administration actually follows
through on its promises concerning delegation, due process, and
deference, there will be a sea change in how the administrative
state functions. Indeed, each of these actions will, ironically
enough, weaken the executive and restore the separation of powers
in the long run. That alone would be a remarkable disruption of the
status quo.

Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston, an adjunct scholar at the Cato Institute, and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power.