Trump Not Enforcing the Law

WaPo (“Trump orders the government to stop enforcing rules he doesn’t like“):

At the Transportation Department, enforcement of pipeline safety rules has plunged to unprecedented lows since President Donald Trump’s inauguration.

Trump recently ordered Energy Department staff to stop enforcing water conservation standards for showerheads and other household appliances. And at one Labor Department division, his appointees have instructed employees to halt most work related to antidiscrimination laws.

Across the government, the Trump administration is trying a new tactic for gutting federal rules and policies that the president dislikes: simply stop enforcing them.

Regardless of whether enforcing these particular rules is a good idea, this “tactic” is far from “new.” Presidents have declined to enforce laws and rules they dislike since time immemorial. Indeed, there were numerous examples during the Obama administration alone. They refused to deport illegal aliens captured by the state of Arizona. They pretended that the DREAM Act was law, even though Congress rejected it. They essentially rewrote PPACA without any legal authority. And, as the late Doug Mataconis detailed back in 2011, they followed a long precedent of refusing to defend the Defense of Marriage Act in court, despite it being the law of the land at the time.

Like it or not, Presidents (and the Executive Branch writ large) have long assumed to power to decide whether to enforce laws and administrative rules. Sometimes it’s a matter of policy preference. Sometimes, it’s simply a matter of resource allocation. Usually, it’s a combination of the two.

It’s quite possible that a difference of degree creates a difference in kind.

“The conscious effort to slow down enforcement on such a broad scale is something we have never seen in previous administrations,” said Donald Kettl, a professor emeritus at the University of Maryland’s School of Public Policy. “It amounts to a dramatic assertion of presidential power and authority.”

This account of the Trump administration’s efforts to scale back application of many laws is based on interviews with more than a dozen federal employees across seven agencies, as well as a review of internal documents and federal data. The employees spoke on the condition of anonymity for fear of retribution.

Trump officials say these efforts will allow the president to swiftly scrap regulations that are burdening a variety of businesses and industries.

“When you have a new regulation, it’s really, really hard on business,” Kevin Hassett, who directs Trump’s National Economic Council, told CNBC on Monday.

“They’ve got to hire all these engineers and lawyers to figure out, ‘What are we going to do with this new regulation?’” Hassett added. “And so by pausing that, already, we’re having a big, massive, positive effect.”

Critics say the administration is breaking the law and sidestepping the rulemaking process that presidents of both parties have routinely followed.

“They’re making across-the-board decisions not to enforce whole categories of standards, and it is of very dubious legality,” said Richard Revesz, who led the White House regulatory affairs office under President Joe Biden and is now the faculty director of the Institute for Policy Integrity at New York University School of Law.

Ultimately, of course, the Executive has first mover advantage on these matters. As the enforcer of laws and rules, it naturally has broad discretion. This is true down to the level of the individual beat cop*: they’re given the latitude to issue warnings for or even ignore altogether minor infractions. Indeed, an officer who arrested or ticketed everyone who violated the letter of the law would be seen as a menace and be reprimanded by their superiors.

At the level of the President and senior policymakers, the courts have long allowed substantial discretion in choosing how, when, and either whether to enforce the law. I don’t have the depth of expertise on this area of the law to know whether Trump’s widespread application of that principle goes beyond the bounds that have been allowed.

One example detailed in the report:

At the Pipeline and Hazardous Materials Safety Administration, a division of the Transportation Department that enforces pipeline safety regulations, officials have opened five cases against potential violators of those rules since Trump’s inauguration, federal data shows. That marks a 95 percent drop from the 91 cases that PHMSA officials opened in the same period under Biden, as well as a 93 percent drop from the 68 cases in the same period in Trump’s first term and a 90 percent drop from the 52 cases opened in that period under President Barack Obama.

It is unclear whether the Trump administration’s mass firings have reduced enforcement staff at PHMSA and other safety agencies. But the decline in pipeline cases comes as the Transportation Department overhauls its approach to compliance, empowering challenges to enforcement actions and heightening scrutiny of those who carry them out.

On Thursday, the agency issued a proposal that would enable Transportation Department lawyers to recommend discipline against enforcement employees suspected of breaking agency rules. The blueprint also outlines a system for the targets of investigations to complain to the transportation secretary’s office, and seek to have evidence thrown out or a do-over of the investigation.

The proposal says it is designed to ensure that the department’s actions are “fair and free of bias.” But three department employees said that the disciplinary provision and other measures in the blueprint would probably have a chilling effect on enforcement.

“If we lived in a world where there existed a bunch of malicious DOT employees whose mission it was to screw over innocent pipeline owners or car manufacturers, I’d understand the purpose of imposing these guidelines,” one of the employees said. “But the people I know, and have worked with for years, are just trying to make sure everyone follows the rules.”

Sen. Maria Cantwell (D-Washington) criticized the proposal in a letter Thursday to PHMSA, saying it creates an avenue for political appointees to retaliate against civil servants.

“Inspectors and investigators will fear that they could be fired just for doing their job — ensuring the safety of the American public,” wrote Cantwell, the top Democrat on the Committee on Commerce, Science and Transportation.

Asked for comment, a spokesperson for the Transportation Department said in a statement that “the last administration carried out enforcements without sufficient due process, consistency and fairness.”

“We see it differently,” the spokesperson said, adding that the department would focus trucking enforcement efforts on issues such as cargo theft, fraud by brokers and visa issues.

At some point, refusing to enforce the law seems to be an obvious abrogation of the President’s Constitutional duty to “take care that the laws be faithfully executed.” My lay sense is that this crosses the line into that territory. But that’s for the courts to decide.

Another example:

In some cases, Trump has personally ordered a halt to enforcement. The president on May 9 signed a memorandum directing the Energy Department “not to enforce” what he called “useless” water conservation standards for home appliances including bathtubs, faucets, showerheads and toilets.

Devin Watkins, an attorney at the Competitive Enterprise Institute, a conservative think tank that has long fought efficiency standards, praised Trump’s move.

“Federal limits on water and energy use have made appliances slower and less effective, frustrating consumers and limiting their choices,” Watkins said in an email. “President Trump’s new executive order marks a return to consumer choice — allowing Americans to purchase appliances that are faster, more effective and better suited to their needs.”

Andrew deLaski, executive director of the Appliance Standards Awareness Project, a coalition of groups that advocate for energy conservation, said he had never seen such a directive to bypass the standard rulemaking process. He said Trump’s actions may violate the Administrative Procedure Act, which requires agencies to solicit public comments on rules, as well as the Energy Policy and Conservation Act, which prohibits the Energy Department from weakening existing efficiency standards.

“It’s patently illegal, so hold your horses,” deLaski said.

From my (again) lay perspective, I would agree that this violates the APA. But it may well be another case where the administration is intentionally setting up a test case to get a ruling on the Unitary Executive Theory.

There are several more examples given in the report. You get the idea.

*Obviously, this is at a different level of government than the actions under discussion. But I believe the analogy useful in conveying the point.