For conservatives, the rolling back of oppressive, costly, and unnecessary federal regulations is probably the signature achievement of the Trump administration so far. This rolling back, if it continues and if it survives challenge, will deliver a major blow to the administrative state and provide the equivalent of a large national tax cut.
EPA is the federal agency at the center of the rollback. Indeed, most of the “tax cut” conservatives hope to obtain through regulatory reform would be the product of the EPA’s negation of over-the-top regulations. No other area of federal rulemaking comes close to imposing the costs that controversial EPA rules carry.
Scott Pruitt has made a great start at regulatory rollback. However, conservatives are in no position to spike the football.
Every stride the Pruitt EPA has made will be challenged in court. Thus, genuine accomplishment is contingent on the Trump administration’s ability to defend the EPA’s actions.
That job will fall to the Environment and National Resources Division of the Department of Justice. Given the political bent of many of its attorneys, there is reason to fear that, absent sufficient vigilance, the defense may fall considerably short of optimal.
Almost a year ago, President Trump nominated Jeff Clark to head the Natural Resources Division. Clark is perfect for the job of defending the administration’s environmental policies.
From 2001 to 2005, he was the Deputy Assistant Attorney General for the Environment and Natural Resources Division at DOJ, one rung down from the job Trump has nominated him to perform. In that capacity, he supervised the Division’s appellate section (50 lawyers and staff).
It is the appellate section that defends the government’s position in federal courts of appeals. And Clark didn’t just supervise the appellate work. He reviewed, edited, or contributed to virtually every brief the Environment Division filed in the courts of appeals. In cases of exceptional significance, including some of the most important environmental law cases ever, he personally briefed and argued the matter.
No one is better qualified than Clark to defend the Trump administration’s environmental law policies. And few, if any, policies subject to judicial review are more central to Trump’s conservative agenda.
Clark cleared the Senate Judiciary Committee, but has not received a vote from the full Senate. That’s partly due to Sen. Cory Gardner’s absurd blockage of all Justice Department nominees in the interests of “weed.” That Clark’s job has nothing remotely to do with enforcing federal law on marijuana made no difference to the misguided Colorado Senator.
Now that Gardner has finally lifted his hold, it’s the usual suspects — Senate Democrats — who are the obstacle. And why not? Their interest is in preserving the costly, unnecessary environmental regulations the Trump administration has targeted.
Senate Republicans have the opposite interest. Thus, they have a profound interest in confirming Jeff Clark.
Senate Republicans also have the majority, albeit barely. Thus, it is within their power to confirm Clark.
The problem is that Democrats have the power to delay proceedings. They do so by insisting on 30 hours of floor debate for many nominees, including federal judges.
The remedy is to change the rules so that debate is limited to a small fraction of that time. Alternatively, the Senate could work a full week and some weekends, as we discussed here.
However, it might not be possible to change the rules on floor debate. A few GOP Senators seem to be balking (“Senate tradition,” “greatest deliberative body,” and all that). Moreover, Majority Leader McConnell seems reluctant to increase significantly the number of hours the Senate works. It may also be that if McConnell does force Senators to work more, Democrats will counter by demanding 30 hours of debate for even more nominees than currently is the case.
Thus, there is no escaping the need correctly to prioritize nominees. McConnell’s first priority is to confirm court of appeals judges. This makes sense as a general matter.
However, in my view the nominees for three key Justice Department positions — Clark (Environmental), Eric Dreiband (Civil Rights), and Brian Benczkowski (Criminal) — are as important for conservatives as the nominees for any court of appeals other than the powerful District of Columbia Circuit. The Trump administration will be hard pressed to succeed on domestic policy if it does not control these three Divisions.
In any case, there should be time enough to confirm the key DOJ nominees and the court of appeals judges within the next few months. If not, McConnell should make the time. If the Dems withhold unanimous consent on other nominees, that’s okay. They are unlikely to grant unanimous consent to any nominee who is truly conservative and truly important.
Finally, McConnell should prioritize the three DOJ nominees over district court judges. Random district judges can play a big role in important public policy issues — we’ve seen this vividly during the past few years. However, most of them do not become involved in cases of great national significance. And when some do, their decisions are subject to review on appeal.
Rod Rosenstein put it well when he said:
There are seven litigating components in Main Justice. Only two of them have Senate-confirmed nominees.
When the founders drafted the Constitution in 1787, this is probably not what they had in mind.
It’s not what Donald Trump had in mind when he promised to drain the swamp, either.