Shortly after the 2017 Presidential inauguration, a senior advisor to the President proclaimed that a top priority of the Administration would be the “deconstruction of the administrative state.” A primary target of the Administration’s deconstruction efforts was the U.S. Environmental Protection Agency (“EPA”) and federal environmental regulations.
While the President can use a variety of tools, including the appointment power, budget power, treaty power, and executive orders, to influence the manner in which the EPA and other agencies interpret and enforce laws, the President has very little power to unilaterally “deconstruct the administrative state.” The “administrative state” is a creation of Congress, and the President can only “deconstruct” it with the full cooperation of Congress. While the current Congress appears willing to change some of the procedures that administrative agencies must follow when taking action and to overturn some agency actions with which Congress disagrees, it does not appear willing to eliminate agencies or significantly reduce or eliminate their powers. The Constitution, the Administrative Procedures Act, and the statutes that create administrative agencies and give them their power all create a complex system of checks and balances to ensure that the President has very little power to deconstruct the administrative state on his own. The “administrative state” was born in the Progressive era of the 19th century and was considerably expanded during the New Deal era in the middle of the 20th century. After a century and a quarter of fortification, the “administrative state” is not likely to “go gently into that dark night.”
President Trump’s efforts to “deconstruct” federal environmental regulation present a clear example of how the checks and balances of the Constitution and the statutory structure of the “administrative state” prevent the “deconstruction of the administrative state” unless the President and Congress cooperate to make sweeping changes to the underlying laws.
Beginning in the 1970’s, Congress passed a series of environmental laws—frequently in bipartisan fashion—that gave the EPA significant duties and responsibilities for protecting the environment. Those laws provide States and citizens with significant power to force the EPA to carry out those duties and provide States and local governments with power to take more aggressive measures than the federal government to protect the environment, if necessary. Despite the general anti-regulatory rhetoric that has proliferated in political campaigns over the last few decades, Congress has not repealed or significantly amended those laws to reduce the powers of agencies, States, or citizens.
Congress’ failure to take such broad action is not surprising in light of the strong public support for environmental protection and environmental regulation. According to several recent polls, a majority of Americans believe that stricter environmental laws and regulations are worth the cost, that alternative energy development should be given priority over fossil fuel development, and that the EPA’s powers should be preserved or expanded, as opposed to being reduced. Public opposition to the President’s plan to curtail federal environmental protection was clearly demonstrated by dramatic increases in fund-raising for environmental organizations after the President’s election and by the hundreds of thousands of Americans who joined in protest marches in the months immediately following the President’s inauguration. During that same time period, when federal agencies sought public input on plans to eliminate environmental regulations or abolish national monuments, hundreds of thousands of Americans voiced their strong opposition in public comments. Citizens also voiced their support for the EPA, environmental protection, and environmental regulation at town meetings held by legislators. Since legislators do not want to be viewed as “anti-environment” and anticipate that they may be voted out of office if they act too aggressively, they are unlikely to repeal or significantly amend the federal environmental laws to reduce or eliminate the powers of federal agencies, States, or citizens. Even if a majority of the Senate were to align with the President to support such legislation against the popular will of the people, there is likely a sufficient minority of the Senate that would oppose such legislation and could block it through filibuster. For the time being, therefore, it seems unlikely that Congress and the President will be able to work together to pass legislation to significantly reduces or eliminates federal environmental regulation or federal agencies’ powers. ...
To outline the checks and balances that limit the power of Congress and the President to fundamentally “deconstruct the administrative state,” this article will explore the actions taken by Congress and the President at the beginning of the Trump Administration, as well as the potential long-term effects of those actions. Part I focuses on the President’s power under the Appointments Clause to appoint the EPA Administrator and DOI Secretary. Part II examines the President’s authority to deregulate through the Budget Power. Part III explores the authority of the President to limit the adoption of new environmental rules, as well as Congress’ efforts to limit the adoption of regulations generally. Part IV examines the power of the President and Congress to repeal or revise existing regulations. Finally, Part V discusses the authority of agencies to deregulate by relaxing enforcement of environmental laws and regulations.
Stephen M. Johnson, Indeconstructible: The Triumph of the Environmental "Administrative State", 86 U. Cin. L. Rev. 653 (2018)