Former Obama regulatory adviser predicts steady increase in legal challenges to Trump deregulation agenda

February 01, 2018
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Litigation will largely shape the outcome of President Trump's deregulation push, while the administration's overall resistance to setting new regulatory requirements will bring major challenges for the government as emerging public safety and other issues are left unaddressed, according to a former Obama White House official.

“Obviously you can't say when, but the longer you go, and the more and more problems are ignored, the greater the risk is that one of those problems is going to manifest itself in a very negative way,” said Sam Berger in an exclusive interview.

Berger served as a senior policy adviser at the White House Domestic Policy Council from 2015 to 2017, and prior to that served as senior counsel and policy adviser at the Office of Management and Budget beginning in 2010.

Berger noted that several Trump initiatives are already being challenged in court, but he expects the pace and number of legal challenges to increase in the coming year, in part because administration efforts to withdraw existing rules will ripen enough to allow for legal action by critics.

“You are going to see some of these cases come to a head,” Berger said. “Some of these efforts to chip away protections that have been challenged in court will come to fruition.”

The Trump administration suspended the effective date and blocked the release of pending Obama-era rules when it came into office in January 2017. The president also signed off on the repeal of more than a dozen regulations that were disapproved by Congress under the Congressional Review Act.

But that option has played out because long-standing regulations are not subject to suspension or use of the CRA, which allows Congress to repeal rules within 60 days of issuance. Now the Trump administration must follow the process laid out by the Administrative Procedure Act, among other rulemaking requirements, to propose the withdrawal of existing regulations, which Berger described as a heavier lift and a major hurdle for the president's rollback agenda.

“When you choose to significantly alert or remove a regulation you have to deal with the fact that previously the agency had determined that it should [issue that rule],” Berger said.

“And in the process of figuring out why a regulation was necessary, agencies accumulate a tremendous amount of information, they reach out to the public, they incorporate those comments, so it's a very involved process,” Berger said. “Once that process has been done, you can't just come back and say you don't like this. You have to come back and explain, under the requirements of the statute, that what you want to do makes sense.”

Berger said this presents the Trump administration with a significantly different hurdle than when an agency decides, or is required by statute, to issue a regulation.

“It's not necessarily that there's a higher burden, it's just that there's an accumulation of facts that you have to address when you're making your determination,” according to Berger “You have to explain what's changed, and why it's changed. And that requires more work than when you're operating on a blank slate.”

Berger also described the long-term implications of the Trump administration's resistance to issuing new regulatory requirements. The president has directed agencies to identify two regulations for elimination when proposing a new requirement, which dramatically shifts the burden on regulators in a way that could hamper the ability and willingness of agencies to address emerging public safety or economic concerns, according to Berger.

“The other thing you're going to see probably some this year, but more in subsequent years, is the result of the Trump administration's refusal to address new issues,” Berger said. “While the efforts at deregulation have been somewhat tepid after the first use of the Congressional Review Act, or at least may be challenged in the courts, the lack of action or decisions not to regulate when new issues present themselves” could have an impact on public health and welfare far beyond the end of the Trump administration, according to Berger.

If you “let things fester, that eventually will result in real issues,” Berger said.

Berger said he expects Trump's call for less regulation to play a part in the upcoming midterm elections, arguing that slowed progress on repealing rules following the administration's initial push under the CRA will likely produce political pressures to demonstrate a continued commitment to cutting regulatory burdens for businesses.

“You're going to see more announcements in the run-up to the election of supposed deregulatory actions,” Berger said, describing such events as “blank paper photo ops.”

He urged critics of the president's deregulatory push to use the existing rulemaking process to lay the basis for eventual legal challenges.

“Getting your voice out there in comments” on proposals to repeal existing rules is an important and often overlooked step for critics of the Trump agenda, Berger said. “It really does matter” because it “can be the basis for subsequent litigation.”