Sunday, March 5, 2017

Update on 'Deconstructing' the Administrative State

      Ryan Zinke marked his first day as secretary of the Interior by rescinding an Obama administration directive aimed at protecting wildlife from lead poisoning. News of Zinke's action appeared deep inside the print edition of the Washington Post, but the move fit in with the front-page story a week earlier featuring presidential policy adviser Steve Bannon's call for "deconstruction of the administrative state."
      Bannon used his appearance at the Conservative Political Action Committee's (CPAC) annual get-together in Washington last month [Feb. 23] to commit the Trump administration to an "unending battle" to roll back the web of federal regulations promulgated since the dawn of the modern administrative state. Those regulations help protect workers, consumers, investors, small business operators, and, yes, even birds and other wildlife. But in Bannon's doctrinaire mindset they do nothing but hold back economic progress.
      Zinke, a second-term Republican congressman from Montana, moved to the Interior post on March 3 after winning Senate confirmation on a mostly party-line vote of 68-31. Others of Trump's Cabinet nominees won confirmation on even closer votes. Most notably, Education Secretary Betsy DeVos became the only Cabinet nominee in history to need the vice president's tie-breaking vote for confirmation after two Republicans worried about DeVos's attacks on public schools joined 48 Democrats to produce a 50-50 deadlock.
      Trump has accused Senate Democrats of delay and obstruction toward his Cabinet nominees. In fact, the pace of confirmations has not been especially slow, but the succession of party-line votes has been unusual. Bannon's remarks at CPAC make clear, however, that Democrats had no choice but to oppose many, or even most, of the nominees.
      Many of the nominees, Bannon boasted to the conservatives, "were selected for a reason, and that is deconstruction." One example would be Scott Pruitt, confirmed on a 52-46 vote to head the Environmental Protection Administration (EPA) after having repeatedly sued the EPA in his previous position as Oklahoma attorney general.
      After six weeks in the White House, Trump has less to boast about than President Obama had after his first two months in office. Most notably, Obama won congressional approval of the $787 billion economic stimulus just four weeks after taking office and then watched the measure over the years help lift the country out of the worst economic slump since the Great Depression.
      Trump has nothing by way of legislative enactments despite Republican majorities in the House and the Senate, only a succession of executive actions. A list compiled by a lawyer with the conservative Southeastern Legal Foundation begins with the Inauguration Day freeze on new agency regulations pending installation of Trump nominees and continues through the Feb. 24 order for all agencies to create regulatory reform task forces and to report regularly on efforts to reduce regulation.
      More specifically, Trump acted to allow construction of the Dakota Access and Keystone pipelines, to re-examine finance industry reforms included in the Dodd-Frank Act, and to withdraw the so-called "Waters of the United States" rule aimed at limiting dumping toxic materials into tributary-feeding wetlands. Bigger plans are afoot, such as abolishing the independent Consumer Protection Finance Bureau (CPFB) and cutting EPA's budget by more than 25 percent.
      The list from the conservative legal foundation passes over what amounts to a series of "deconstruction" moves at the Justice Department under the second most controversial of Trump's Cabinet nominees, Attorney General Jeff Sessions.  The fourth-term U.S. senator won confirmation on a 52-47 vote, the closest ever for a successful attorney general nominee. With Sessions himself not voting, one Democrat crossed party lines to join the 51 other Republicans in voting to confirm their well-liked colleague.
      In his confirmation hearing, Sessions repeatedly assured senators, including skeptical Democrats, that he would enforce laws fairly and impartially at the Justice Department even if he had personal disagreements. Sessions has not been true to that commitment. Instead, he has moved to weaken legal protections for minority voters, transgender students, and civilian victims of police abuses.
      Within his first month, Sessions presided over a shift in the Justice Department's previous position of opposing Texas's restrictive voter ID law as an intentional act of racial discrimination. He also prevailed on his reluctant Education Department colleague DeVos to join in withdrawing the previous, jointly issued guidance directing public schools to allow transgender students to use bathrooms and locker room facilities corresponding to their gender identity.
      Most ominously, Sessions signaled that the Justice Department would drop the Obama administration's practice of investigating local police departments for "patterns and practices" of violating civil and constitutional rights. The Obama administration had used the authority granted under a 1993 law to investigate police abuses and promote reforms needed to prevent police killings of unarmed or unresisting civilians.
      Sessions deserved more scrutiny for these policy moves even before the disclosure that he misled the Senate committee in denying any contacts with Russian officials before the election. His decision to recuse himself from any investigation of the Trump campaign's contacts with the Russians was a no-brainer, but it fails to address the well-grounded calls that he resign in the light of his possible perjury before the Senate committee.
      Zinke's low-profile deregulatory move at Interior came as a sop to gun rights and hunting groups that had opposed the last-minute directive from the Obama administration. The directive called on managers of national wildlife refuges to phase out the use of lead ammunition on the sites by 2022.
      Lead poisoning is linked to the deaths of 10 million to 20 million birds annually; as the Post explained in its story. Lead poisoning occurs when fragments of shot are eaten by scavengers or leach into the environment. Hunters opposed the policy because copper or steel ammunition is more expensive.
     When he spoke to the nation's governors last month, Trump explained the slow progress on repealing and replacing the Affordable Care Act by saying that "nobody" knew that health care was so complicated. Federal regulation is easily demonized, but the rules that help make the economy work for the benefit of all are also complicated. Trump's nominees may come to realize that as they settle into their new jobs.

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