Right before Thanksgiving this year, I read an article in The New York Times that introduced me to something we should all be grateful for, the Administrative Procedures Act of 1946 (APA).
This humble piece of bipartisan legislation is the main thing that prevents Trump from implementing a Muslim ban, putting an immigration status question on the Census, requiring work requirements for Medicaid recipients, allowing employers to not provide birth control in their health insurance plans, rolling back anti-pollution regulations, and inflicting other impulsive and mean-spirited administrative changes on the nation.
The APA’s special super power is logic, fact, and public input. It requires that major changes in federal regulations must go through a thorough process of public notice and comment. It also requires agency legal interpretations to not be “arbitrary and capricious.” The Trump administration (thankfully) seems to have had a lot of difficulty complying with both these basic requirements.
The Institute for Policy Integrity at the NYU School of Law tracks litigation against the Trump administration’s clumsy attempts at administrative rule-making. Of the 59 resolved legal challenges recently listed on their website, 55 (93%) resulted in the blocking or withdrawal of the administration’s proposal. Of the 45 cases that were decided by federal judges, 12 involved judges appointed by Republican presidents.
This is a remarkable record of failure, as apparently (according to another New York Times article) most administrations win around 70% of such rule-making challenges. One case that received a lot of attention this year, probably because it went all the way to the Supreme Court, was the effort by Wilbur Ross to include a citizenship question on the Census.
As Chief Justice Roberts stated in his opinion invalidating Ross’s proposal, “… (A)gencies must pursue their goals reasonably. Reasoned decision-making under the Administrative Procedure Act calls for an explanation for agency action. What was provided here was more of a distraction.”
This same weakness has also (so far) been fatal to Trump’s attempt to rescind the DACA program. Multiple federal appeals courts have blocked this rescission on the grounds that the rationales being provided are “arbitrary and capricious.” After being given a second chance to explain themselves, and being denied a second time, the administration was told by the judge that policy rationales “must be more than a barren exercise of supplying reasons to support a preordained result.”
I find all this wonky legal stuff reassuring. It provides me some relief from the heartburn I get watching Trump get away with other big lies about why he does things: firing Comey over the handling of the Clinton investigation, withholding Ukrainian aid over concerns about corruption, separating children from their parents because the law requires it, imposing tariffs on Canadian steel for national security reasons, etc, etc. It’s nice to know that somewhere in our system there is a mechanism for putting our foot down and stopping such nonsense.
Henry Hardy is a resident of Greenfield.