Big Business Has Almost Won Its Long Game Against The Administrative State

Hello, it’s the weekend. This is The Weekender ☕

One of the Trump administration’s big plans in the event of a victory this November has to do with the administrative state.

Trump wants to bring the country’s independent agencies under, as he put it in a campaign announcement, “presidential authority.” It’s not clear how practicable or legal this executive order would be, but what it would do is take the independent federal regulatory agencies — alphabet soup bodies like the FAA, FCC, NLRB, and the Fed — and require that any new regulation they submit first go to the White House for review.

I’ll be honest: when I started reporting this story, I began not by thinking about Trump and his movement’s plans to both rein in and, as Steve Bannon put it, “deconstruct” the administrative state. I started off by thinking about Trump’s authoritarianism, and his myriad threats to contort federal power towards his campaign of retribution. The FCC, which regulates broadcasters, the FTC, which examines mergers, and other agencies seemed to offer prime ground for Trump’s particular mix of authoritarianism for his enemies and favoritism for his friends.

Trump’s proposal alone would not directly help him achieve that, though strategic appointments to lead these agencies — composed of commissions with counterweights from the opposing party — could help. The proposal is far more limited, and matches what Republicans and some corporate Democrats have wanted for a long time — bringing independent agencies under centralized White House review, likely slowing down those agencies’ ability to issue new regulations quickly.

What’s more interesting is that Trump chose to frame this proposal as part of his authoritarian campaign of retribution. He describes the proposal as “liberating America,” a bold stand against “unelected members of the Washington Swamp.” The New York Times, as part of a series on Trump’s plans for which his campaign gave them access, trumpeted it in similar terms.

The bark here doesn’t match the bite of the proposal. But for Trump, casting himself as acting retributively is useful — as is striking fear into the hears of his opponents, who care deeply for the independence of these agencies. In this case, all of that drama is, paradoxically, a stalking horse for the much more banal and familiar agenda: corporate America’s commitment to deregulation.

Both the House and Senate Thursday passed a stopgap to fund the government until early March. The story is familiar: The right flank is furious that Speaker Mike Johnson (R-LA) would work with Democrats (on must-pass legislation that needs Democratic support to pass), leadership is doing some gratuitous back-patting for averting a shutdown, lawmakers promptly got the heck out of dodge. 

The next chapter will look different. When these continuing resolutions run out, Congress will have about two months to actually pass appropriations bills or run afoul of the punishments lying in wait in the Biden-McCarthy debt ceiling agreement from last summer. If lawmakers haven’t passed all the bills by then, or try to just pass more CRs, government funding will revert to 2023 levels minus one percent across the board. That would include the rare pieces of government Republicans actually want funded, like the Defense Department. 
 

Johnson can’t even pass stopgaps without his right flank’s hand twitching towards the motion-to-vacate trigger. How in the world will he pull together 12 appropriations bills that can garner enough Democratic support to pass in a dynamic where any, even minor, cooperation with the opposing party is high treason?

Justice Neil Gorsuch was nearly salivating Wednesday as he tenderly cradled the prospect of levying a historic blow against powerful federal agencies. 
 

“Who decides?” Gorsuch asked, interrupting the lawyer opposing the government to better make his argument for him. “Is the judge persuaded at the end of the day, with proper deference given to a co-equal branch of government, or does the judge abdicate that responsibility and say, automatically, whatever the agency says wins?” 

Tricky. 

The conservatives of the Court sounded near-certain to overturn Chevron deference, the 40-year-old bedrock of agency power that lets the experts that staff those agencies fill in uncertainties in laws (e.g. Congress telling the EPA to regulate “sources” of air pollution, without defining what counts as a source) as long as their interpretations are reasonable. It was meant, in part, to help rein in judges from filling those gaps with their own policy preferences.  

The Roberts Court has been extremely hostile to big agency moves, particular under the Biden administration. Shifting politics has helped situate them: The days are long gone when conservative justices, including Antonin Scalia, embraced Chevron as coinciding with their interest in empowering the (Republican) executive. Now, with Republican administration agencies largely concerned with unwinding regulation, they can safely take an anti-agency stance, knowing that it’ll be mostly Democrats who try to use them to affect major progressive change.

Chevron came down in 1984, a year after Gorsuch’s mother headed the EPA with a sole focus on slashing the agency’s regulations. Forty years later, her son is poised to advance that legacy.