Option for deregulation under the Trump administration: Agency non-enforcement
© Getty Images

As the countdown to Inauguration Day intensifies, it remains unclear exactly how the Trump administration plans to nullify scores of regulations promulgated and executive actions taken by the Obama administration. President-elect Trump has pledged to issue a temporary moratorium on new agency regulations that are not compelled by Congress and recently stated that two existing rules must be eliminated for every new rule issued.

With incoming executive branch and congressional leaders debating the best approach to stopping newly-issued regulations from going into effect, one overlooked option – agency non-enforcement of a regulation – may represent an effective means ensuring that anti-business portions of certain regulations remain sidelined at the same time.

ADVERTISEMENT
The new Trump administration likely will issue an executive order suspending any new regulation that has not been finalized or published in the Federal Register, following the examples set by the George W. Bush administration in 2001 and the Obama administration in 2009. The directives sent to all agencies by the Bush and Obama administrations requested that agencies refrain from sending any new, proposed or final regulation to the Office of the Federal Register – a suspension of activities that allows incoming officials enough time to review pending regulations and determine whether they follow the new leadership’s policy goals.

As for final regulations that have already been published in the Federal Register but have not taken effect, upon taking office President Trump still could order agencies to delay for 60 days the effective dates of the regulations, in order to conduct a new, detailed review of them.  That approach also follows the Bush and Obama precedents from the executive orders that they issued.

However, the Trump administration faces a higher hurdle in attempting to rescind final rules that have already been published in the Federal Register and taken effect.  Traditionally, the process of overturning such a regulation involves undertaking new notice-and-comment rulemaking under the Administrative Procedure Act and offering a rational justification why the rule should be abandoned. 

Instead of immediately engaging in this difficult process and subjecting its policy decisions to judicial review, the Trump administration could undertake an initial, different strategy by directing agencies to refuse to enforce certain rules.  In situations in which an agency opts against taking enforcement steps pertaining to a rule, the presumption is that judicial review is not available.  As recognized  in 1985 by the Supreme Court in Heckler v. Chaney: “[A]n agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” 

The Supreme Court offered three main reasons for finding non-enforcement decisions unsuitable for judicial review: a decision not to enforce involves balancing of factors within the agency’s particular expertise; an agency’s refusal to act does not involve that agency’s “coercive” powers requiring protection by courts; and such a decision mirrors a prosecutor’s decision to not indict.  While there might be more room for judicial review if there is a constitutional violation of the rights of certain plaintiffs based on the agency’s non-enforcement decision, or where a statute provides clear legislative direction that limits an agency's enforcement discretion, the presumption that judicial review is not available largely has been upheld by courts since the Heckler decision.  For example, in a case decided in 2000, Friends of the Cowlitz v. F.E.R.C., the Ninth Circuit held that the Federal Energy Regulatory Commission’s decision not to investigate alleged violations of the Federal Power Act -- which states the “Commission shall monitor and investigate” license compliance and “may issue such orders as necessary to require compliance with the terms and conditions of the licenses” – was within the agency’s discretion and therefore not reviewable.

Thus, as the Trump administration prepares to roll back regulations on issues ranging from the environment to health care to immigration, officials also should consider the idea of issuing an executive order suspending the enforcement of certain rules. While such an approach would not strike the regulations from the Federal Register altogether, it would represent a quick and feasible start to an expected broad and sweeping deregulation process.

Ira Kasdan is a partner at Kelley Drye and Mindy Pava is an associate at Kelley Drye.


The views expressed by authors are their own and not the views of The Hill.