The Trump administration's judicial appointments are the "flipside" of its deregulatory policymaking, and both factors are part of its effort "to get back to fundamentals," Donald F. McGahn, White House counsel and assistant to the president, explained at the Media Institute's monthly luncheon on Thursday (July 12).
"We're trying to establish core regulatory and budget" systems that have "often been ignored in rulemakings," he said, emphasizing that federal regulatory agencies have become a fourth branch of government, often building rules based on their previous rulemaking that ignore fundamental statutes.
"When agencies promulgate new rules, they must justify it on a statutory basis," he insisted.
McGahn rushed through his informal remarks, explaining that he had taken a break from the day's main task of escorting Supreme Court nominee Brett Kavanaugh around Capitol Hill to meet senators. He said that he could not refuse an invitation from Media Institute chair and Washington legal legend Richard Wiley to speak at the luncheon, but neither could he spend time taking questions from the audience of media executives.
He added that the speech was only his third such presentation since he joined the White House staff at the beginning of the Trump Administration.
McGahn stressed that his remarks wouldn't deal with communications-related agencies, such as the FCC or FTC. Rather, he sought to explain the administration's role in the "sea change going on" at agencies and the courts.
He characterized the effort as a process that will eliminate the ways in which agencies now both legislate and adjudicate policies. In particular, he focused on the "unfortunate" ways that agencies perpetuate policies by building on their previous decision "rather than on what Congress adopted."
Although he did not offer specific examples of such actions, McGahn stressed that "statutory activity is vital" and that policy-making should adhere to the Administrative Procedures Act, rather than a series of "dear colleague" letters and sub-procedures that skirt basic legislative practices.
"It is essential for agencies to reduce the regulatory burden," McGahn said. "Over-regulation can get in the way of economic growth."
Shifting gears slightly, McGahn sheepishly laughed that one part of this process would not sit well with his friends at the Cato Institute, a libertarian think-tank.
"Let's be honest: You need some degree of regulation," he said, recognizing a baseline but quickly adding that regulators "should make sure" that their policies make sense in the marketplace.
That where the role of federal judges will become more important to assure that agencies adhere to the statutory limits of their actions, McGahn said. Noting that, typically, "agencies look inward to the usual interest groups," he urged that regulators "must look beyond the Beltway" when they adopt policies.
McGahn promised that the administration's ongoing judicial selection process would focus on recruiting individuals who have "administrative experience," noting that the courts have "never been clear enough" on how they address the Chevron rule, which gives deference to "expert agencies" in setting regulatory policies.
"That's an area that's evolving," he said.