Posted on September 13, 2018 by Seth Jaffe
Rick Glick’s September 11 post discusses Judge David Norton’s August 2018 decision to issue a nationwide injunction against the Trump Administration’s “Suspension Rule,” which delayed implementation of the Obama Waters of the United States Rule. As noted in Rick’s post, that case was not about the merits of the WOTUS rule. It was simply about the Trump administration’s failure to comply with the Administrative Procedure Act in promulgating the Suspension Rule.
Which brings me to the point of this post.
The Administration’s failure to comply seems so obvious that one has to wonder whether the Administration even cared whether the Suspension Rule could survive judicial review. Indeed, this case seems part of a clear pattern. The Court noted as much in quoting a summary of such cases from the plaintiffs’ brief:
Clean Air Council v. Pruitt (vacating the EPA’s attempt to temporarily stay a Clean Air Act regulation without “comply[ing] with the … APA”); Open Communities All. v. Carson, (enjoining the defendant agency’s attempt, “without notice and comment or particularized evidentiary findings, … [to] delay almost entirely by two years implementation of a rule” adopted by the previous administration); Pennsylvania v. Trump (enjoining two new “Interim Final Rules” based on the defendant agencies’ attempt to “bypass notice and comment rule making”); Nat’l Venture Capital Ass’n v. Duke (vacating the defendant agency’s “decision to delay the implementation of an Obama-era immigration rule … without providing notice or soliciting comment from the public”); California v. U.S. Bureau of Land Mgmt. (holding that the defendant agency’s attempt to postpone a regulation’s compliance dates “after the rule’s effective date had already passed … violated the APA’s notice and comment requirements by effectively repealing the [r]ule without engaging in the process for obtaining comment from the public”); Becerra v. U.S. Dep’t of the Interior, (holding that the defendant agency violated the APA in “fail[ing] to give the public an opportunity to weigh in with comments” before attempting to postpone a rule that had already taken effect).
To which the Court added its own footnote:
To this litany of cases, the court adds two more from the last several months— Nat. Res. Def. Council v. Nat’l Highway Traffic Safety Admin. and Children’s Hosp. of the King’s Daughters, Inc. v. Azar. As these cases make clear, this court is but the latest in a series to recently find that an agency’s delay of a properly promulgated final rule circumvented the APA. (My emphasis.)
I find it hard to believe that numerous smart lawyers, across a range of agencies, all suddenly forgot what the APA requires. Isn’t it more likely that the Administration simply doesn’t care about the outcome? The government of the most powerful nation on earth, that likes to think that it taught the world about democracy, doesn’t care about governing. All it cares about is having Twitter material, to feed to its adoring fans and, equally importantly, to bait its many critics.