Resistance (At All Costs)

by Kimberley Strassel

  The Constitution makes clear that Congress is supposed to make the laws. Obama made them himself. When Congress refused to provide him climate legislation, he directed his Environmental Protection Agency to do the same by regulatory fiat. When Congress wouldn’t give him wetlands legislation, he directed the EPA to create the sweeping Waters of the United States rule—giving the federal government authority over every mud puddle in the country.

  And in addition to the dubious legality of these rules there was their extraordinary cost, a flagrant government “taking”—as it were—from American companies and workers. According to George Washington University’s Regulatory Studies Center, the Obama administration ultimately finalized an astonishing 490 “major” rules—defined as those that each inflict a cost of $100 million or more on the economy. Bill Clinton, by comparison, only mustered 361 over his own two terms. Even the New York Times acknowledged Obama’s legacy was defined by “bureaucratic bulldozing rather than legislative transparency.”

  Obama was even more obnoxious with his use of executive orders. In March 2011, in response to calls that he unilaterally change immigration law, Obama said, “With respect to the notion that I can just suspend deportation through executive order, that’s just not the case.” Two months later he again acknowledged that he couldn’t “bypass Congress and change the law myself.” He explained: “That’s not how a democracy works.”

  Yet when democracy didn’t work out the way he liked, he did just that. In 2012 he issued his Deferred Action for Childhood Arrivals order, giving quasi-legal status to some 700,000 illegal aliens who were brought to the country as minors. In 2014 he issued an even broader order (DAPA), which provided administrative amnesty to millions more illegal immigrants. The second order was so howlingly extralegal that a federal judge issued an injunction before it was ever allowed to go into effect, the Fifth Circuit Court of Appeals upheld that injunction, and the Supreme Court maintained that ruling. DAPA never saw the light of day.

  And when Obama didn’t like laws that were on the books—including his own—his administration just changed them. In a January 2016 article in Forbes, Galen Institute President Grace-Marie Turner noted that Obamacare had been changed seventy significant times since its enactment in 2010. Some twenty-four of the changes were passed by Congress; another three were made by the Supreme Court. But many of the others the Obama administration imposed unilaterally, “without legal authority.”

  The 44th president also showed a blatant contempt for other parts of the Constitution. In 2012, angry that Republicans were blocking some of his nominees, Obama unilaterally declared the Senate in recess. He then used his power of recess appointment to install three pro-union nominees to the National Labor Relations Board. The move was so obviously unconstitutional that all nine members of the Supreme Court unanimously rebuked the president in 2014. “The Senate is in session when it says it is,” wrote liberal Justice Stephen Breyer. Yet Obama still got away with lawlessness, given that the Court was not brave enough to also strike down the hundreds of decisions that an unconstitutional NLRB majority had issued in the intervening time.

  His agencies engaged in blatant power grabs and coercion, riding roughshod over states and federalism. They repeatedly used the threat of withholding federal funds to force policies onto the states. Obama Medicaid officials in 2015, for instance, threatened to cancel Medicaid funding for Florida unless it agreed to expand Obamacare. They also usurped traditional state power. The EPA in 2014 issued an unprecedented “pre-emptive” veto of the Pebble Mine project in Alaska, denying the company, the state, and the Army Corps of Engineers the right to go through the usual permitting process. The veto put every state on notice that the EPA would now be the first, and only, arbiter of future development projects. Obama’s land agencies—the EPA, the Bureau of Land Management, the National Park Service, the U.S. Forest Service—were so overbearing and punitive that they sparked a nascent new Sagebrush rebellion. The anger among Western landowners resulted at one point in the 2016 armed standoff between ranchers and the federal government at Oregon’s Malheur National Wildlife Refuge.

  Obama’s IRS targeted political opponents. At urging from congressional Democrats, outside liberal groups, and the president himself, IRS official Lois Lerner and her nonprofit division threatened and abused hundreds of conservative Tea Party nonprofits that applied for tax-exempt status. The IRS’s actions had the effect of silencing tens of thousands of conservative voices during both the 2010 midterms and the 2012 presidential election.

  Agency heads routinely evaded federal transparency laws, to hide their doings from the public. Appointees and bureaucrats conducted business on private e-mail accounts or set up secondary, alias government accounts under fictitious names, making their correspondence harder to dig up with Freedom of Information Act requests. (Former EPA head Lisa Jackson used the nom de plume “Richard Windsor.”) And let’s not even get into former Secretary of State Hillary Clinton’s private server, which gave her the power to unilaterally decide what any taxpayers would ever see of her work product.

  Obama’s Justice Department was a menace, routinely using its awesome powers to bully unpopular targets into settlements and payouts—financial institutions, oil companies, mining firms. DOJ diverted settlement money into a slush fund that it redistributed to favorite liberal interest groups. It, and other federal agencies, took to issuing “guidance” documents, extralegal rulings that allowed the administration to avoid the official rule-making process. And the DOJ ran roughshod over constitutional protections for religious liberty and free speech.

  Throughout, Obama continued to appoint liberal judges who had thoroughly “evolving” views of the Constitution and who could be trusted to wink and nod at, and legally justify, these overreaching, arrogant power grabs.

  All of this makes the incessant allegation and emotion over the “lawless” Trump something close to hilarious. A politicized Justice Department? Check, under Obama. Ruling by decree? Did that, under Obama. Blatant disregard for checks and balances? Been there, under Obama. Changing laws at will? Hello, Obama.

  This was the political moment Trump stepped into in late 2015, and even his initial presidential announcement speech—at the foot of that escalator—took aim at Obama’s “illegal executive” immigration order. In February 2016 at a town hall in South Carolina, Trump highlighted how Obama used executive orders in the place of actual legislation, and he derided the practice. “This country wasn’t based on executive orders,” Trump said. “It’s a basic disaster.”

  The theme of lawless government was central to the entire Republican primary and was further heightened in the final months—as the race came down to a duel between Trump and Ted Cruz. The Texas senator had blasted Obama’s unchecked behavior over the years and made his promise to run as a “constitutional” conservative central to his campaign. Trump never embraced that label—indeed he rarely even today references the Constitution. But as the primary waged on, he put ever greater emphasis on the ideas behind that notion of conservatism. He promised to lower taxes, slash regulation, pull the United States out of extralegal agreements like the Paris Climate Accord, crack down on lobbyists and corporate welfare, and get rid of waste and fraud in government. And then there was his novel decision in May 2016 to release a list of potential Supreme Court nominees, from which he would choose a replacement for Antonin Scalia, who had died several months earlier. Trump’s list was an all-star inventory of the brightest conservative legal minds in the country and represented, he said, the “constitutional principles” he valued. This vow—to stock the federal judiciary with judges committed to the rule of law, the separation of powers, and the Constitution—reassured millions of conservative voters and arguably won Trump the election.

  Upon winning, Trump also immediately stocked his administration with the leading lights of this new constitutionalist-conservative movement. Many of these figures took jobs out of an edgy excitement that Trump really was a different kind
of leader—and he intended to let them rein in government.

  They included people like Don McGahn, who for two years served as Trump’s general counsel. McGahn had spent years as a federal election commissioner struggling to rein in an out-of-control FEC bureaucracy that routinely sidestepped the appointed leaders. Putting government back in its box had become his mission in life. Or there was former South Carolina Representative Mick Mulvaney, whom Trump installed at the head of the Office of Management and Budget. Mulvaney was a founding member of the House Freedom Caucus, allied closely to the Tea Party movement, and passionately committed to reducing the size and scope of government. Scott Pruitt, the Oklahoma attorney general who had repeatedly sued the Obama administration for its unconstitutional acts, went to the EPA. Pruitt stated his intention to return the agency to its “statutorily-defined” mission, and to renew cooperation with the states. The federal Interior Department got as its head Montana Representative Ryan Zinke, a Westerner determined to once again put public lands to work for Americans, rather than cater to the whims of green groups. Elaine Chao, who had proven one of George W. Bush’s most aggressive reformers as secretary of labor, returned to impose the same overhaul mentality to the Trump Transportation Department. And with all these big names came an army of like-minded constitutional conservatives, serving in other vital appointed positions in the Trump government.

  Trump let this crew loose, and they didn’t waste a millisecond. One year into the administration, Politico ran a piece headlined: “138 Things Trump Did This Year While You Weren’t Looking.” (A better headline would have been, “138 Things Trump Did That We Failed to Tell You About, Because We Were Too Obsessed with Russia,” but at least Politico got there in the end.) The article, with a certain amount of surprised concern, noted the obvious: “Steadily, and almost totally separately from Trump’s speeches and tweetstorms, his administration has been ushering in a new conservative era of government.”

  These legions of conservative advisers act as a natural brake on some of Trump’s off-the-cuff proposals, even as they work to meld his more unconventional approach to the law. Trump views his job as pushing the boundaries of government-as-usual; they view theirs as making sure this conforms with statutes and regulations. A great example was the 2018–2019 government shutdown. Most administrations try to make shutdowns as politically painful as possible, so as to get Congress to roll. They furlough workers, close national parks, withhold money from vital programs.

  Trump wanted to do the exact opposite; he wanted to hold out as long as possible, to force Democrats to meet his border security demands. This had never been done before, and it required an entire team of OMB employees, led by General Counsel Mark Paoletta, working day and night, to figure out how to legally continue paying some government bills without running afoul of federal laws. Their work was among the reasons that the Coast Guard got checks, Americans continued to get food stamps, and the IRS kept processing tax returns. Was the shutdown a good idea? Maybe not. Was it legal? Absolutely.

  Those advisers also helped Trump bring to a screeching halt the Obama pen-and-phone method. It’s not that Trump didn’t issue executive orders—he did. Amusingly, the press used his early embrace of them as yet further, alarmed evidence that he was governing as a tyrant. Trump is about to sign “a record number of executive orders in his first 100 days,” blared the Associated Press, noting that he was “turning to a presidential tool he once derided.”

  What the critics didn’t note is that Trump’s orders were almost exclusively focused on rolling back government, keeping it in line. One order imposed a five-year ban on executive branch employees from federal lobbying. One implemented a novel regulatory “budget,” ordering every department and agency to slash two regulations for every new one proposed. Regulation spending could also not, overall, exceed $0. One ordered a review of financial regulations, with the goal of ending government bailouts. One expedited federal environmental reviews for high-priority infrastructure projects. One ordered the EPA to get rid of the horrific Waters of the United States rule. One ordered Mulvaney at OMB to produce a plan to reorganize governmental functions and eliminate unnecessary agencies. One gave agencies the authority to issue waivers and exemptions of Obamacare, given its increasingly crushing costs. All this was the opposite of Obama’s use of executive orders to extralegally create more government.

  Trump has overseen the most dramatic reduction in the size of federal government of any president in the modern era. He allied with Republicans to employ the Congressional Review Act, a previously little-used legislative tool for overriding bad regulation. The act allows simple majorities of the House and the Senate to strike down any rule written in the past sixty legislative days. Obama had engaged in a flurry of midnight regulation, working to force through as much government expansion as possible in the waning months of his administration. All of those rules were subject to the CRA, and between Trump and the Republican Congress, they struck down sixteen major Obama regulations—including rules designed to shut down mining, oil, and gas operations; strangle payday lending; and squelch hunting in Alaska.

  And these victories paled by comparison to the Trump administration’s internal deregulation. By December 2017—less than a year into his presidency—the Trump team announced it had canceled or delayed more than 1,500 planned Obama regulations—eliminating 22 rules for every proposed 1. In October 2018, it issued a new report showing that even in its second year, it had hit a 12-to-1 deregulatory ratio, saving the economy $23 billion in costs.

  The national government compiles all its rules and regulations into what’s called the Federal Register, and for decades that book has consistently grown, usually year-on-year. Obama finished his final 2016 calendar year with an all-time Federal Register record of 95,894 pages. A year later, on December 29, 2017, the first year of Trump, the Federal Register concluded at 61,308 pages. It was the lowest count since 1993, Bill Clinton’s first year in office. By the end of 2018, an analysis by the Competitive Enterprise Institute showed that Trump had issued the fewest number of regulations in recorded history in his first two years of office. Tyrants don’t get rid of rules; they pile them on.

  The press has also missed the extraordinary efforts the Trump administration has taken to make it harder for bureaucracies in the future to restart the rule-making engine. McGahn told me that when he took the top Trump legal job, he brought with it two overriding goals—both aimed at neutering an increasingly lawless federal workforce. The first was to confirm into every department and agency a general counsel and team of lawyers who in addition to deregulation have also put in place rules that should make it harder for current and future bureaucrats to overstep their statutory boundaries.

  McGahn’s other achievement was to ensure Trump’s remake of the federal judiciary also put new focus on bureaucrats. McGahn didn’t just want stellar conservative judges; he had other filters. He wanted young judges: people in their forties and fifties who’d be able to serve for decades on the federal bench. He also wanted judges with a deep understanding of administrative law and the separation of powers. In the 1980s, conservatives obsessed about judicial litmus tests like abortion. But as the years rolled on, and federal bureaucrats grew more powerful, conservative organizations such as the Federalist Society became equally obsessed with judges who understood the unique challenge of our big-government times. They began to focus on the Supreme Court’s 35-year-old Chevron precedent, which holds that courts should defer to federal bureaucrats’ interpretation of law. The Constitution, they note, tasks a confirmed and accountable judiciary with settling law—not nameless, faceless worker bees.

  McGahn hasn’t received enough credit for his work with the Federalist Society to come up with a list of judges uniquely qualified to take on big government. He and Federalist Society executive vice president Leonard Leo, along with Senate majority leader Mitch McConnell, have been rightly praised for the sheer number and quality of constitutionally sound judges they plac
ed. By March 2019, McConnell had successfully voted through eighty-nine judges: fifty-three district court judges, thirty-four appeals court judges, and two Supreme Court justices. The circuit court and high court numbers were particularly consequential. Trump in two years successfully filled nearly 20 percent of all appeals court judgeships with his picks. As for the Supreme Court, his appointments of conservatives Neil Gorsuch and Brett Kavanaugh guaranteed a truly conservative majority for the first time in decades.

  But McGahn’s bigger victory was in the type of conservative judges. A significant number of Trump’s appeals court picks were in their forties, guaranteeing decades of service on those crucial courts that are just one step below the Supremes. And these younger judges in particular had cut their teeth in a new era of big-government legal battles. Both Gorsuch and Kavanaugh were rightly feted upon nomination as brilliant jurists with outstanding intellects, devoted to deciding cases based on the clear language of the law. Less noticed is that both men had been vocal as lower-court judges about challenging Chevron, and the wisdom of letting bureaucrats run the show. In a 2016 opinion, while still serving as a Tenth Circuit court judge, Gorsuch derided Chevron as “judge-made doctrine for the abdication of the judicial duty.”

  Trump put in place dozens of judges who share an overriding fidelity to the law and an interest in restraining oppressive government. “Autocrats” are all about growing their power; they don’t embrace smaller government. They don’t sign orders and hire people focused on restraining the scope of federal power. And “autocrats” don’t strengthen a rival branch (the judiciary) with a new generation of judges who exist to keep the executive branch in line. The entire Trump-as-tyrant narrative is nonsensical.