In just the latest example of his quixotic and impulsive decision-making style, President Donald Trump has been reportedly considering using emergency powers to build his wall. While such a move faces major constitutional and legal hurdles, the practical effects would likely follow a clear pattern for this administration. The president’s past demands for instant gratification have created an uncomfortable dynamic for Cabinet members and agency heads, who have rushed through policies vulnerable to all manner of legal challenge.
To a degree beyond any previous president, though, Trump’s rash orders have been particularly vulnerable to administrative process challenges. While Trump seems to relish the chaos created from lobbing political curve balls, his caprice often saddles his agencies with sharp rebukes in federal court. On an array of issues, courts have blocked Trump administration policies, finding them illegal for failure to provide adequate public notice and comment periods, and for ill-considered, “arbitrary and capricious” rulemakings. The fate of any Trump emergency proposal won’t likely be determined on these grounds, but these cases demonstrate just how much self-inflicted harm Trump has done with decisions like these.
The federal executive bureaucracy is by nature a lumbering beast. But under pressure from Trump’s itchy Twitter finger to produce swift results, the administration’s agencies are producing flimsy administrative records that fail to pass muster in federal court. As a result, the Trump era has seen a significant uptick in successful Administrative Procedure Act claims levied against the government on key policy matters. These cases evidence a deeply flawed executive process, filtering down from the president and the White House to the federal agencies, which Trump oversees.
The Administrative Procedure Act, a federal law, serves as a guardrail against executive branch abuses. For example, a federal court recently struck down as “arbitrary and capricious” a Trump administration policy effectively barring immigrants from seeking asylum in the United States based on fear of domestic abuse. This case was just one of many.
Administrative policymaking relies on the steady accretion of evidence to bolster the legal case for policy action, or inaction. This reality has often stymied federal agencies in the Trump era. Environmental groups, in particular, have won a slew of victories against the administration. The Trump administration has reversed, or attempted to reverse, at least 78 environmental rules over the past two years—an unprecedented number. In their haste, agencies have made serious errors, prompting several court victories in cases against the administration. These include a judicial decision blocking the Bureau of Land Management’s attempt to delay a rule requiring oil and gas companies to limit methane leaks when drilling on federal lands. In that case, the judge upbraided the agency, finding that the decision reflected a “lack of a reasoned analysis” and failed to comport with mandatory public notice and comment requirements. The D.C. Circuit also admonished the Environmental Protection Agency for trying to delay a rule improving safety at facilities using hazardous chemicals, finding that the agency made a “mockery” of federal law and vacating the delay as “arbitrary and capricious.” And another federal judge held that the environmental agency had illegally delayed a rule regulating the certification and training of pesticide applicators.
In several cases, judges have rebuked Trump’s agencies for failing to show good evidence to support their actions. Many of the administration’s policies remain ensnared in litigation. A recent congressionally mandated report confirming the immense, intensifying impacts of climate change on human health and the economy is likely to present an additional hurdle for Trump’s agencies’ efforts to roll back pollution standards. The report puts in stark relief the gulf between the administration’s efforts to eliminate certain environmental rules and the strong, countervailing scientific evidence refuting those goals.
The violations of administrative requirements have also extended to other arenas. For example, a federal judge, relying on the Administrative Procedure Act, blocked an attempt by the Department of Housing and Urban Development, helmed by Ben Carson, to postpone a rule giving low-income families better access to housing in wealthier neighborhoods. The agency later reinstated the rule.
While Trump isn’t solely to blame for all of these failures, agency heads appear anxious to appease the president by touting fast-moving policy actions. Last year, the EPA, under then-Administrator Scott Pruitt, produced a report boasting about the agency’s rapid regulatory rollbacks, even as the agency’s actions faced serious challenges in court. Even as Pruitt remained mired in ethics scandals, Trump stood by his side for months, citing this regulatory slashing efficacy (Pruitt was ultimately forced to resign, but it took a comical number of bad headlines to get him to quit). Other agencies have engaged in similar communications exercises, in service of the president’s agenda. The president himself likes to count the number of regulatory rollbacks initiated by his administration, sometimes falsely inflating the figures.
As agency heads find themselves in the line of fire, they will continue to be forced to choose between placating their mercurial boss and complying with federal law. Both options are a losing game.