The Trump White House Is Upending Decades of Policy-Making Procedures

By Stuart Shapiro, Professor of Planning and Public Policy, Rutgers University. Originally published at The Conversation

Whether it’s overhauling asylum procedures, adding a question about citizenship to the 2020 Census, or rolling back fuel standards, a pattern has emerged when the Trump administration changes policies and creates new ones.

An announcement is made, media attention follows, the policy is formally proposed and finalized – generating more news coverage along the way. In many cases, judges suspend the new policy as lawsuits work their way through the system. Unusually, the Supreme Court often ends up determining whether the new policy can go into effect.

All presidents since the 1960s have embraced a process known as policy analysis that requires careful consideration and deliberation at every step of the way. In most cases, the public also gets to weigh in before a final decision is made. Based on my research about regulatory decision-making, I’ve observed a sea change in how Trump’s team is dealing with public policy compared to previous administrations.

Administrative Procedure Act

For the first 150 years of this country’s history, Congress, not presidents, decided on policies by enacting laws.

Starting around 1900, lawmakers began to delegate this task to independent agencies, such as the Securities and Exchange Commission, and to government agencies under the president’s control. The pace of this shift stepped up during the New Deal, three decades later.

But because this arrangement can empower unelected bureaucrats, questions about accountability arose. Chief among them: Could decisions made by unelected officials that affected millions of people be allowed in a democracy? Requiring public participation and systematic analysis became routine and required for most policy changes as a result.

The mandate for public participation came first.

In 1946, Congress passed the Administrative Procedure Act. It established rulemaking procedures that required agencies creating new policies to alert the public, seek comments, and then consider that input before making most policies final. Many states followed suit with their own versions of this measure.

Silent Spring

The environmental, worker safety, and other social movements that arose during the 1960s and early 1970s led Congress to create agencies like the Environmental Protection Agency and the Occupational Safety and Health Administration. Lawmakers then delegated authority to make policy to those new agencies regarding the issues within their purview.

For example, the public pressure for greater automobile safety in the wake of consumer safety activist Ralph Nader’s book “Unsafe at Any Speed” prompted Congress to empower the Department of Transportation to more strictly regulate automakers. Scientist Rachel Carson’sSilent Spring,” a seminal book that exposed the damage caused by pesticides, expedited the passage of numerous environmental statutesin the U.S. and elsewhere and the creation of the EPA during the Nixon administration.

In the wake of these new responsibilities, starting with Gerald Ford, all presidents, Republican and Democratic alike implemented and refined the requirements for analysis and input from the public prior to the unveiling of new policies. The analysis requirement championed by pioneers like Alice Rivlin, who served as President Bill Clinton’s budget chief, has led to many successes.

One example is when the EPA decided in the 1980s to require the removal of all lead from gasoline because the analysis of costs and benefits showed how many lives would be saved or improved by its elimination. I relayed another success story in my policy analysis textbook: when the Department of Homeland Security scaled back its proposal for stringent requirements on aircraft repair stations in 2014. The Obama administration took this step after finding the costs to be too high for minimal security benefits.

These mandatory analyses forced agencies to use basic economic principles to calculate costs and benefits and to make the calculations available to the public.

But this approach can also fail, at least partly because it can make decisions seem overly technocratic. That’s often the case when values are at stake, such as deciding whether protecting an endangered species is worth increasing the cost of construction and infrastructure projects – or blocking them altogether.

What’s more, following the requisite steps can also mean the rule-making process takes not just years but decades. OSHA, for example, has taken decades to issue some rules that protect workers. Its industrial quartz regulations, for instance, reportedly took 45 years to finish. Technically known as crystalline silica, the substance, when finely ground up for manufacturing or blasted during construction, can cause workers to contract silicosis, an incurable lung disease, and lung cancer.

Shifting Gears

The Trump administration hasn’t declared that it’s doing anything different. It hasn’t, as far as I know, ever declared that “policy analysis is bad” or said, “Let’s ignore the public and ignore expertise.”

But the public record shows that Trump’s team has either ignored, manipulated or subverted the requirements for analysis and participationon numerous policy actions that range from addressing climate change to the division of waiters’tips.

Whether a federal agency analyzes its decisions or asks for public input on them may seem like the ultimate in inside baseball. But processes make a difference. I believe that its failure to follow the long-established policy analysis process is a key reason why Trump administration is losing many court battles.

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25 comments

  1. Carla

    The administration may be losing many court battles, but they know the Supremes trump all, and they’ve got the highest court in the land in their pocket.

    Reply
    1. The Rage

      Maybe but.eventually you get dismissal of the supreme court. FDR was close in 1936 when they would not support his social nationalist agenda.

      Trump is anti-American in spirit. His heart is.over in Asia and has been since the mid-90s

      Reply
      1. RenoRich

        > Trump is anti-American in spirit.
        I agree.

        > heart is.over in Asia and has been since the mid-90s
        Interesting. I would like to study this a bit. Do you have a link or two to share?

        Reply
      2. Massinissa

        Er, do you have information to back up the ‘heart in asia’ claim?

        Also, could you define ‘anti-american’?

        This sounds like a mix of American Exeptionalism combined with fear-mongering over Orientalism.

        Trump has plenty of problems but they can be explained much better than this.

        Reply
  2. Math is Your Friend

    Is it just me, or do other people find the terms ‘procedures’, ‘policies’, and ‘Trump administration’ in the same sentences weirdly dissonant?

    Reply
    1. Anarcissie

      Trump was hired by the part of the electorate that voted for him (and the Founding Fathers, I guess) to overturn things, so overturning long-standing policies and procedures in favor of his agenda seems like exactly what we ought to expect. One could also expect it to meet with the approval of his nihilistic fans at least until some serious downside (for them) appears.

      Reply
  3. Mike

    If policy review and consideration by highly educated specialists is the litmus test for Democratic-Party- era decisions, why would we expect Trump to continue this “tradition”? His obvious animosity toward Obama in particular has had him overturn any policy he could with Obama’s name attached, and attacking Clinton-era policy has gained him favor with those who have, since 1947, shown a desperate need to roll back anything passed since Roosevelt. Given the desperate condition of our economy since 1972, and its need to turn to financial robbery to survive and thrive, how could we expect anything else? Democracy is an impediment – ask any Democrat from the DNC and they’ll agree. Eliminating the bureaucrats and specialists hurts them more than eliminating popular input.

    Reply
    1. Sushi

      This is the key phrase in the article:

      But because this arrangement can empower unelected bureaucrats, questions about accountability arose.

      When viewed together with the publicized actions within the FBI, DOJ and State Department, it is no wonder that there grave concerns about the hidden or open agendas and intentions of bureaucrats.

      None of that excuses Trump’s seat of the pants approach, it just shines more light onto it. The American public needs to see the pervasive corruption that is endemic in DC and to demand and get responsible changes.

      Reply
    2. Robert Hahl

      I am in the middle of William Greider’s great book Who will tell the People, The betrayal of American democracy, written just before Clintontime, which has many examples of how executive agencies purposely served business interests above all else. It sounds as if nothing has changed since then, but Trump is giving it a try; probably by cutting the hypocrisy and going straight to the desired results.

      Reply
  4. Noel Nospamington

    I think that 10 years from now the biggest impact from Trump will be from his cancellation of the Iran nuclear accord and unilateral imposition of strict sanctions which the Europeans were not able to bypass in any meaningful way due the prevalence of the US dollar in global transactions.

    There is now significant motivation in Europe and even China in creating a real alternative to the US dollar for international transactions which bypasses US banks. If this happens to any significant degree, it would undercut the US dollar as the world’s reserve currency, resulting in a permanent drop in its value.

    Without international support, US Government deficits and trade deficits will become unsustainable, and there will be a significant drop in the American median standard of living.

    Reply
    1. eg

      I will be astonished if this transition can be completed within my lifetime and utterly flabbergasted if it can be completed peacefully.

      Reply
      1. Yves Smith Post author

        Trump can sanction companies and banks that use it. Take away a major international bank’s US banking license and it’s toast. The companies have been afraid to defy the US.

        Now how the US finds out about transactions over this system is a different matter, but the US could offer hefty bounties for people who provide documentary evidence…..

        Reply
      2. fajensen

        Maybe not invade, exactly, but: Considering the existence of “Operation Gladio” and those other armed CIA-outfits operating here (like “our own” Absalon) to “fight communism”, one should expect that US security services will have several networks of generic “Far Right-” and “Islamist-” terrorist outfits pre-installed within Europe – in case “kinetic options” are needed.

        One should watch what happens in those EU countries being especially uppity about making war with Iran, like Germany.

        Reply
  5. Chauncey Gardiner

    It’s about the intentional expansion of executive power. Didn’t begin with this administration, but this group has taken it to new levels. The extensive use of executive orders by this administration, signed with great public fanfare and media attention as though a president can dictate law, is by design. This has been coupled with the actions of a Senate majority leader who has self-labeled himself “the grim reaper” for his capacity to kill legislation initiated by Congress. Together with the flood of ideologically driven judicial and executive branch appointees by this administration who are charged with enforcing the laws and regulations, these developments should be opposed by any citizen who supports representative democracy. In my view, checks and balances against the concentration of power in the executive branch are at risk with foreseeable potential consequences.

    Reply
  6. Tomonthebeach

    Trump clearly hates being regulated, as do most bus billionaire cronies. They want to drill for oil on the White House lawn if there is potential. They would mine sulfur from Old Faithful if it was profitable. They surely do not want to be told how to take over small farms or use pesticides. They even seem oblivious to their own safety when it comes to EPA. But it sure seems like this WH will not let regulations stand in the way of a “Deal.”

    Reply
  7. Sam

    The APA is not an unmitigated good. As in so many areas big players have learned how to exploit the APA process to serve their own ends. One example from my own experience as a lawyer for a Wall St bank: after the Dodd Frank Act became law in 2010 the big banks delayed its implementation for years by submitting reams of comments as each implementing regulation was proposed by the CFTC or SEC, knowing that under the APA the agencies were required to consider every comment and document their reasons for accepting or rejecting it or face litigation for “arbitrary and capricious” action. I predict that a future Sanders or Warren administration attempting to implement major regulatory change will find itself hamstring by the same offensive use of the APA by the special interests.

    Reply
  8. The Rev Kev

    As much as Trump needs to have a brickbat going at him, it is ridiculous to attribute this ignoring procedures just to him. How many people remember the Office of Special Plans? Back under Bush, neocons like Cheney, Wolfowitz, Feith, etc. wanted to gin up a war against Iraq but the professionals said there was no cause to do so. So they created a bs office to stovepipe rubbish intelligence straight to the White House and bypass all established procedures of professional scrutiny of any intelligence. So all those lies about Saddam and al-Qaeda working together and building nuclear weapons went straight to the desk of the frat-boy president and they used this to push America into a war that has had catastrophic consequences for the middle east. And the cream on the cake? After thousands of Americans and tens of thousands of Iraqis had died, the Bush regime convinced the American public that all this rubbish intelligence was the fault of the intelligence community for not properly scrutinizing this “intelligence”.

    https://en.wikipedia.org/wiki/Office_of_Special_Plans

    Reply
    1. Ian Perkins

      Quite so. In many ways Trump is just more up front and in your face about what previous administrations have done more sneakily and surreptitiously.

      Reply
  9. pat b

    The point of Policy Analysis was to establish the record to show ideas had been considered for NEPA and that the basis of the policy was ‘rational’. Without that process, the courts can declare any Trumpian tweet
    arbitrary and capricious or based on pretext…

    This is why the courts are tossing stuff

    Reply

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