Cass Sunstein, a professor at Harvard Law School, has developed a short list of six factors that those in government efficiency departments need to consider. This is worth paying attention to, and those who do not want deregulation, but do not want it, will ignore his list in their (and perhaps our) profiles.
I won’t repeat the list here. It’s easy.
However, I would like to add one important item that Sunstein omitted and should not have omitted. As far as this item is concerned, deregulation will be much easier than Sunstein suggests.
I wrote about it briefly here.
In an editorial published in the Wall Street Journal (electronic version) on November 17, 2024, titled “Trump wants to ‘confess to his mistakes'” (electronic version), attorney Chris Horner points out this seventh item: is made clear. The title of this editorial is unfortunate. Perhaps many readers didn’t bother reading it because they thought Donald Trump was unlikely to admit he was wrong. I don’t know why they think that.
However, it turns out that the mistakes that Donald Trump has to confess are not his own, but rather those of others.
Horner writes:
Government agencies cannot lie about their reasons for imposing regulations. This is a principle known as the rule against pretexts. Still it happens. For example, EPA Administrator Michael Regan has shown a willingness to use authorities unrelated to climate change to force factory closures to meet climate goals. This gives the new administration an opportunity to rein in some of the Biden administration’s most egregious overreaches before the rules achieve their intended results.
Trump administration officials should quickly investigate internal agency files to establish a record of subversive rulemaking and other wrongdoing. Government lawyers must then admit these wrongdoings in court.
An “admission of error” is a practice in which government lawyers inform courts that the state has made a legal error and that an agency’s decision is warranted. It is not enough to simply change the government’s ideology or interpretation. However, a court will almost certainly accept an admission of error of law, fact, or procedure that is supported by documentation of admitted wrongdoing.
In other words, if a government agency lies to justify a particular regulation (and I’m sure there are many such regulations), the Trump administration will require detailed steps like those listed by Sunstein. This may make it easier to achieve rapid deregulation.
Note: I don’t know how often this strategy has been tried. Chris Horner probably has more information.
