To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: January 30, 2019
Re: The Rao Nomination: Replacing Kavanaugh with Someone Even More Extreme
The Senate Judiciary Committee has scheduled a hearing for Tuesday, February 5; it is expected to include the nomination of Neomi Rao to the D.C. Circuit Court of Appeals. Specific writings by Rao on date rape, racial and gender discrimination, LGBTQ rights, climate change, and other subjects have recently produced understandable outrage. But her lifetime of work as an advocate and a professor warrants careful review as well, and demonstrates further what an extreme nominee she is.
One major objection to Brett Kavanaugh’s nomination to the Supreme Court concerned his extreme views on presidential power and on independent regulatory agencies. In fact, a key cornerstone of the Trump-Federalist Society strategy on judicial nominations has been to appoint judges who will help enhance the power of the president and effectively repeal the New Deal by “deconstruction of the administrative state,” as right-wing advocates like Stephen Bannon prefer to put it. Kavanaugh’s record made clear that he fit that prescription. But in nominating Neomi Rao to fill Kavanaugh’s seat, Trump has chosen someone even more extreme than Kavanaugh on these key issues. Particularly given the D.C. Circuit’s crucial role in reviewing the work of and challenges to federal administrative agencies, the result could be extremely dangerous for all Americans.
Administrative agencies like the Federal Trade Commission and the National Labor Relations Board have been a crucial part of the New Deal social safety net that began under Franklin Delano Roosevelt and continued through legislation and other efforts throughout the 1960s and beyond. Since then, Congress put in place a progressive set of laws and agencies that are designed to ensure that only safe and effective drugs are put on the market; that there is a minimum wage 40-hour work week, and an opportunity for workers to bargain with their employers; that factories do not dangerously pollute the air we breathe and the water we drink; that corporations do not deceive consumers; that discrimination based on race, gender, and other characteristics does not shape people’s life opportunities; that health and safety on the job is protected; and much more.
In contrast, the far Right and Trump have long sought to eliminate or minimize the role of such agencies and return to the “supposedly golden era” when big business and wealthy individuals controlled society without federal government protections to safeguard the interests of everyday Americans. Trump’s judicial nominations constitute an important part of the strategy to do just that.
Rao’s record makes clear that she would help lead the charge from the D.C. Circuit, which regularly considers challenges to agency action and is considered the second most important court in the country. After a clerkship with Justice Clarence Thomas and work in the George W. Bush White House Counsel’s office, Rao was a law professor for more than ten years at George Mason University law school, where she has been active in the Federalist Society and founded and directed the Center for the Study of the Administrative State, funded by billionaire Charles Koch. She is currently Trump’s appointed head of the federal Office of Information and Regulatory Affairs (OIRA), which plays an important role in agency matters. A report by the Center for Progressive Reform concluded that Rao’s record demonstrates “a strong mistrust, if not hostility toward, regulatory agencies and their role in policy implementation and enforcement.”
In three specific areas, her extreme record endangers the ability of Congress and administrative agencies to effectively protect Americans and to hold accountable President Trump and other presidents. These include: 1) eliminating Congress’ authority to set up truly independent agencies; 2) severely weakening agencies by limiting their ability to carry out tasks assigned to them by Congress; and 3) making it impossible to investigate and prosecute a sitting president like Trump for illegal conduct.
1. Eliminating Congress’ authority to create truly independent agencies
Ever since the Supreme Court’s New Deal-era decision in the Humphrey’s Executor case concerning the Federal Trade Commission (FTC), it has been widely recognized that Congress has the authority to set up agencies and boards that are partly independent from the President because some or all of their members can only be removed by the President “for cause,” rather than for any reason at all. As Justice Breyer has explained, this independence is important and constitutionally legitimate because of the “need for technical expertise” and the need to insulate such officials from “fear of losing their jobs due to political influence.” In 2010, Breyer identified almost 50 such agencies, many of which have important functions in protecting against consumer and public health and safety abuse, such as the FTC, Federal Mine Safety and Health Review Commission, Securities and Exchange Commission (SEC), and Occupational Safety and Health Review Commission.
One important critique of Brett Kavanaugh as a Supreme Court nominee concerned his criticism of such agency independence, including his dissent in an important D.C. Circuit decision upholding Congress’ decision to insulate the Consumer Financial Protection Bureau (CFPB) from industry and political pressure by providing that its director could only be removed “for cause.” Yet Kavanaugh’s defenders and his own testimony claimed that he did not dispute and would not seek to overturn the fundamental Supreme Court decision upholding Congress’ authority in this area in Humphrey’s Executor.
Rao, however, would go much further. She agreed, of course, with Kavanaugh’s view in the CFPB case that Congress could not limit the President’s power to remove its director. But she has made clear that she opposes limits like Humphrey’s Executor on the President’s power over regulatory agencies. In a 2014 article, she wrote that at-will presidential removal of agency officials was “necessary and sufficient” for the required “presidential control” over such agencies. In another article on “abolishing agency independence,” she argued that a 2010 5-4 Supreme Court decision established “the foundation for a wider assault on agency independence” that could lead to “eliminating agency independence” completely, with those agencies operating under total presidential control. However, the 5-4 opinion she relied upon only said that members of the SEC should be able to fire members of the Public Company Accounting Oversight Board at will, thus retaining the “for cause” requirement for presidential firing of SEC members and not addressing at all the Humphrey’s Executor principle that Congress can create agencies whose members retain independence from the President.
2. Severely weakening agencies by limiting their ability to carry out tasks assigned to them by Congress
Another important principle allowing agencies to do their job to protect the public from abuse is Congress’ ability to create agencies with specialized expertise and to authorize them to determine more specifically what regulations and other actions to pursue. As long as Congress does not delegate actual law-making power to agencies and establishes an “intelligible principle” to guide them, Congress can and has directed agencies to make decisions on how an objective should be accomplished and adapt to changing circumstances and technology. Only rarely has the Supreme Court ruled that Congress violated the “non-delegation doctrine” in authorizing action by agencies.
But Rao has advocated significantly limiting the ability of Congress to provide such authority to agencies to do their jobs. She argues that agencies should “only be able to do the things that Congress explicitly spells out” and claims that Congress should provide “less authority” to agencies. That view would not only contradict Supreme Court precedent, but would also require a degree of specificity that Congress cannot provide and make it impossible for agencies to do their job. As one commentator put it, under Rao’s view, it will be “[b]ye, bye clean water and air” and “so long, consumer safety.”
Another important legal principle important to agencies’ function is the Chevron doctrine, named after a Supreme Court opinion more than 30 years ago. According to that principle, courts should generally defer to administrative agencies’ interpretation of the laws that Congress has charged them with enforcing—particularly when the laws are ambiguous, unless the regulation or other interpretation is unreasonable.
Based on that common-sense proposition, which even Justice Antonin Scalia largely agreed with, courts have usually upheld federal agency rules that protect health, safety, the environment, and other values. As Representative Hank Johnson explained in opposing a House Republican bill seeking to eliminate the doctrine through legislation, repealing the Chevron doctrine would “shield entrenched economic interests from liability and make it harder for agencies like the Environmental Protection Agency to deal with emerging public health threats.”
Not surprisingly, those helping pick judicial nominees for President Trump have been attracted to nominees like now-Justices Gorsuch and Kavanaugh, who have criticized or tried to limit Chevron. Also not surprisingly, Rao has been critical of Chevron as well. For example, in a 2018 speech to the Heritage Foundation, she stated that courts should provide “a more robust review of regulatory action” than under Chevron, leading to “more meaningful checks on agency action.”
3. Making it impossible to investigate and prosecute a sitting President like Trump for illegal conduct
Closely related to Congress’ authority to set up partially independent agencies whose officials cannot be fired by the President without cause is Congress’ ability to limit the President’s firing of independent or special counsel. Based on the Supreme Court’s ruling in Morrison v. Olson, which held that Congress’ creation of an independent counsel was constitutional, members of Congress of both parties have proposed legislation to protect a special counsel like Robert Mueller from being fired except for cause. Opponents of the legislation have claimed it is unconstitutional, and have criticized Morrison on similar grounds as the Court’s Humphrey’s Executor decision concerning independent agencies.
Rao has explicitly criticized Morrison, just as she has disparaged Humphrey’s Executor, writing that both decisions have been “undermined” by her view of later Court decisions. This is despite recent decisions such as the D.C. Circuit ruling in PHH Corp. v. CFPB that have reaffirmed Morrison and rejected criticisms by Kavanaugh and others.
In the same article that she criticized Morrison and Humphrey’s Executor, Rao made clear that she believes that independence for officials like Mueller or the head of the CFPB is unconstitutional. “Independent discretion for executive officers,” she wrote, is “counter to the best understanding of Article II” of the Constitution. The President, she concluded, “must have the ability to remove all executive branch officers at will.” This extreme view of presidential power would doom any effort to protect Mueller or other special prosecutors.
Rao also “appears to be a ‘no’” on whether a sitting president like Trump can face criminal prosecution. In one article concerning constraints on the president, she explained that during office, the president can be checked by court decisions enjoining official conduct, oversight hearings, spending cutoffs, and even impeachment. But only “after removal from office,” she suggested, “a President may be criminally liable for his actions.”
Rao has been rightfully criticized on a number of civil rights grounds. But we should not overlook Rao’s extreme views on presidential power and administrative agencies, which pose a serious threat to the overall progress of our society since the New Deal. It is no exaggeration to conclude that for Americans “fearful of presidential power grabs or politics trumping policy in federal agencies, she is a nightmare.”