Is Trump moving too fast? Checks and balances will slow him down.
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There are many important checks on the power of the executive branch in general and on the power of the president in particular. The Constitution, as interpreted and applied by the independent federal judiciary, is the ultimate check on executive power. A court can rely on the Constitution as the basis to reject as unlawful any action taken by the executive branch.

In some narrow but important circumstances—mostly involving national security—the president can exercise his inherent power as chief executive or power delegated to him by Congress in a broadly worded statutory grant of power.

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That is the circumstance in which President Trump issued his executive order that bans certain classes of visa holders from entering the United States. In cases of that type, courts tend to be particularly deferential to the president in light of his superior access to information gathered by intelligence agencies and his awesome responsibilities to protect the nation. Even in that situation, however, judges take seriously their responsibility to insure that the president does not violate the Constitution or a statute.

 

In the vast majority of circumstances, Congress enacts a statute that confers the power to act on an agency rather than on the president. Thus, for instance, the president cannot authorize a pipeline to be constructed across a river—only the Army Corps of Engineers can exercise that power.

Agencies usually act in accordance with the preferences of the president for many reasons. Agency heads are appointed by the president. They usually share his values and preferences. They tend to be loyal to the president. And they know that the president can remove them from office.

Presidents can communicate their preferences to agencies in many ways. Sometimes presidents announce their preferences in executive orders. They use that public method of communicating their preferences when they want to take political credit for an action that is actually taken by an agency. More frequently, presidents communicate their preferences through less formal and less publicly visible means like meetings and telephone conversations.

When an agency decides to take an action that the president wants the agency to take, the agency must act in a manner that is consistent with statutes. An agency can only take an action if Congress has delegated to the agency the power to take the action.

When Congress delegates the power to act to an agency it limits that power both substantively and procedurally. The agency action must be consistent with the substantive goals Congress instructs the agency to further, and the agency must use the procedures Congress requires the agency to use to make the decision.

The most important actions agencies take must be accomplished through use of the notice and comment rulemaking process. That process is time-consuming and resource-intensive. The agency must first issue a notice of proposed rulemaking in which it describes the rule it proposes to issue, identifies all of the sources of data it plans to consider in deciding whether to issue the rule, and solicits comments from the public on the proposed rule.

Once it receives and considers the comments, the agency can issue the final rule. It must accompany the rule with a statement of its basis and purpose in which the agency explains why it is issuing the rule and responds to all well-supported comments that criticized the proposed rule or its factual predicates.

In the case of a major rule, the notice of proposed rulemaking is usually 50-150 pages long, the comments are usually hundreds of thousands of pages long, and the statement of basis and purpose is usually hundreds of pages long. The notice and comment process usually requires years to complete.

At the end of the rulemaking process, a court reviews the rule. The court will reject the rule as arbitrary and capricious or not in accordance with law if it decides that the rule is not consistent with a statute or if it decides that the agency did not adequately consider the arguments made in well-supported comments that criticized the proposed rule. Courts reject about 30 percent of the rules they review.

Given his philosophy of government, President Trump is likely to urge agencies to repeal or to amend many rules that he considers to be unnecessary or unduly burdensome. If the rule was issued through the notice and comment process, the agency must use the same lengthy and resource-intensive notice and comment procedure to repeal or amend the rule. Courts will then use the same criteria to review decisions to repeal or to amend rules that they use to review decisions to issue rules.

Richard J. Pierce Jr. is the Lyle T. Alverson Professor of Law at George Washington University. His work been cited in hundreds of judicial opinions, including more than a dozen opinions of the U.S. Supreme Court.


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