Harvard Law professor Cass Sunstein has a short list of six factors that people in a Department of Government Efficiency need to consider. It’s worth paying attention to and those who don’t, yet want to deregulate, ignore his list at their (and possibly our) peril.
I won’t repeat the list here. It’s brief.
I will add, though, one important item that Sunstein omits and should not have omitted. To the extent this item is relevant, it makes deregulation much easier than Sunstein suggests.
I wrote about it briefly here.
In “Trump Will Want to ‘Confess Error’“, an op/ed in the Wall Street Journal on November 17, 2024 (electronic version), attorney Chris Horner lays out this 7th item. The title of the op/ed is unfortunate because it probably led many readers not bothering to read because they thought it unlikely that Donald Trump would ever admit an error. I have no idea why they would think that.
But it turns out that the errors that Donald Trump should confess are not his own but, rather, those of others.
Horner writes:
Agencies aren’t permitted to lie about their reasons for imposing a regulation—a doctrine known as the rule against pretext. Yet it happens. EPA Administrator Michael Regan, for instance, has shown a willingness to use authorities unrelated to climate change to force closure of plants to achieve climate goals. This presents the new administration with an opportunity to rein in some of the most egregious Biden-administration overreaches before the rules achieve their intended outcomes.
Trump administration officials will need to review promptly internal agency files to establish the record of pretextual rulemakings and other improprieties. Government lawyers will then need to acknowledge these improprieties in court.
“Confessing error” is the practice by which government attorneys inform a court that the state has legally misstepped and that annulment of an agency’s judgment is warranted. A change in administration philosophy or interpretation is insufficient. But the courts would almost certainly accept a confession of error of law, fact or procedure supported by documents that illustrate the admitted wrongdoing.
In short, if government agencies lied in order to justify certain regulations (and I would bet that there are many such), the Trump administration may not need to go through the detailed steps that Sunstein lists, and quick deregulation would be easier to achieve.
Note: I have no idea how often this strategy has been tried. Possibly Chris Horner has better information.
