November 14, 2018 at 5:08 p.m.
Conservative judicial selections have become a cornerstone of the president's most consequential accomplishments. Most important are the two picks Trump has had to the U.S. Supreme Court, likely securing conservative control for a generation or more.
But Trump's make-over of the appellate and circuit court system is just as sweeping. So far, Trump has succeeded in naming 29 judges to the circuit courts, 53 to district courts, and his nominees now fill 15 percent of the circuit court seats, according to NBC.
It's a torrid pace, and Trump and his ally in the Senate, majority leader Mitch McConnell (R-Kentucky), promise to keep the pace hot next year.
But the selection of Neomi Reo was interesting, not just because she continues Trump's mission to reshape the federal judiciary but because she is also a key figure in another area in which the president has achieved significant reforms of likely lasting consequence: the dismantling of the administrative state.
Until now, Reo has served as Trump's administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget.
That's the technical, bureaucratic title. In everyday political parlance, she's Trump's Deregulation Czar.
That Trump would even have a deregulation czar speaks volumes in and of itself. No other president has had one, and for good reason. All past presidents, including Republicans and especially George W. Bush, have increased regulations.
Barack Obama was the master of the administrative state. He not only built the federal bureaucratic behemoth executive order by executive order, he even had a formal regulatory czar to see just how tight the regulatory noose could be tightened around the nation's neck.
That was Cass Sunstein, the like-minded radical, who has often been described as Obama's superego. Obama and Sunstein were the first to make the obscure Office of Information and Regulatory Affairs a significant and powerful government position.
The problem is, Sunstein is an avowed paternalist who believes the government should encourage healthy behaviors by influencing the choices people make -- "nudging" them to make sensible decisions - while it simultaneously protects them from their more evil desires.
That requires a restriction of the range of choices people actually have- we might point out that a restriction of choice is not really choice but the illusion of choice - and that in turn requires administrative rules, and for a while Sunstein and Obama did a mighty fine job of becoming our helicopter parents.
Now Trump has taken custody and has decided to let the American people live their own lives again. Some will stumble, and most will soar, but at least we won't have to endure abuse at the hands of the Obama administration.
So what has Trump done? Well, he has unraveled Obama's legacy executive order by executive order. And he stood the Office of Information and Regulatory Affairs on its head, with Neomi Reo running the show.
Leave it to Trump to invert the power pyramid. For the first time in a long time, what was global is now local, or at least headed in that direction.
Let us count the ways. Since Trump took office, the oppressive Waters of the U.S. rule was yanked, regulations have been reduced for mining and drilling, a policy was implemented to establish a one-stop-shop regulatory approach to commercial space exploration, and the federal permitting process has been reformed.
Not least, Trump has taken aim at so-called guidance documents, which federal agencies use to impose informal rules with the convenient force of law during times when hostile administrations are in power.
As Reo reported last week, over the past two years, federal agencies reduced regulatory costs by $23 billion. Compare that to the Obama administration, which imposed more than $245 billion in regulatory costs on American businesses and families during its first two years, according to Reo.
In her report last week, Reo explained the president's philosophy: "When reviewing regulations, we start with a simple question: What is the problem this regulation is trying to fix? Unless otherwise required by law, we move forward only when we can identify a serious problem or market failure that would be best addressed by federal regulation."
That's a far cry from Obama and Sunstein, who viewed free markets as failures by definition and sought to obliterate them.
Trump has also implemented a two-for-one rule approach that requires two regulatory recissions for every new rule implemented, and, in 2017, according to the Competitive Enterprise Institute's Clyde Wayne Crews, federal regulators issued the lowest number of final rules - 3,281 - since the National Archives began publishing the numbers in 1976.
In sum, if Trump's remaking of the federal judiciary can be described as a tidal wave, his efforts to behead the administrative state represent a tsunami.
Sadly, though the Senate can continue to help Trump make a lasting impact on the judiciary, regulatory relief could be fleeting. That's because the last do-nothing GOP Congress failed to pass such bills as the REINS Act, which would have required congressional approval before any major rule could take effect, not to mention other pieces of legislation to make the deregulation revolution permanent.
That legislation is now out of reach with Democrats taking control of the House.
As Obama painfully learned, what is done by executive order can be undone by executive order in the next presidency, so much of the deregulatory revolution depends on Trump staying in office.
But not all of it. Some of the administrative power of the federal government derives from the federal courts' long history of deference to executive rule-making power when rules have been challenged, and a more conservative court has begun to rein in that deference.
The high court has yet to take a case broadly challenging the boundaries of agencies when making rules with the force of law, or challenging anew their ability to define their own jurisdiction, or to review the doctrine of judicial deference to state agencies itself, but, as Trump remakes the courts, that day is coming.
Whatever else can be said of President Trump, of his economy and his Twitter account, of his trade and immigration policies, when it comes to the courts and to the administrative state, this is a president of consequence, perhaps more so at this point in a first-term than any other, save for war-time executives.
The mainstream media may delight in yelling that the Russians are coming, or that some other nonsense contrived in the echo chamber of identity politics is defining America, but in real life the very real conservative consequences of the Trump presidency are already here, and will, for better or for worse, be the real force shaping America for years to come.
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