Al Haig
Who's in charge?
If it undermines the rule of law to fire officials that work in the administrative branch, then prosecutorial discretion also is a threat to the rule of law.
Congress passes a law making marijuana a controlled substance. But Presidents don’t enforce the law, for example.
There is a constant tension here.
The belief that replacing officials with people the President wants to install because it could lead to faithless execution of the law suggests that the President is nothing more than a figurehead.
By this logic, Congress should appoint the heads of different agencies. Just to be safe.
But they can’t.
‘The power to remove officials arbitrarily creates a powerful weapon to dismantle the rule of law. If a President can unreasonably remove officials, he can remove them for resisting an order to disobey the law or infringe upon constitutional rights. He can repeal a statute unilaterally by simply firing all those who would obey their oaths of office.
‘If the case proceeds further, the Supreme Court needs to take the potential of the unitary executive theory to undermine or even destroy constitutional democracy into account. It may help explain why there is no evidence that the drafters of the Constitution ever endorsed a power to remove officials arbitrarily and that arbitrary removal, although rare, has often been used to prevent—not carry out—faithful law execution. President Andrew Jackson used it to undermine the national bank, incurring a censure. President Andrew
‘Johnson removed numerous officials to prevent implementation of newly passed civil rights laws, suffering impeachment as a result. President Richard M. Nixon removed officials to cover up Watergate and faced almost certain impeachment before he resigned. And President Trump’s numerous removals in his first term facilitated massive legal violations, causing him to lose some 90 percent of his immigration cases.’
Trump Wins a Big One on Executive Power
Is it possible to have accountability if you can’t fire appointed officials exercising executive power?
‘President Trump may soon get the Supreme Court showdown he wants after a split D.C. Circuit Court of Appeals on Friday ruled he could fire Biden appointees on the National Labor Relations Board and Merit Systems Protection Board. This could get interesting.
‘Mr. Trump removed NLRB member Gwynne Wilcox and MSPB member Cathy Harris with the goal of teeing up a challenge to the High Court’s Humphrey’s Executor (1935) precedent. That decision has long been interpreted as barring a President from dismissing members of independent agencies. But maybe not.
‘A lower court blocked both dismissals. But D.C. Circuit Judges Justin Walker and Karen Henderson write in separate opinions that Humphrey’s doesn’t apply to either because both agencies exercise executive power. They let the dismissals stand for now while they hear the merits on an expedited basis.’
Trump’s New Way to Kill Regulations: Because I Say So
On the face of it, this makes sense. Conditions change. If a regulation makes sense, then it could be renewed, through the legislative process, if necessary.
How many regulations from 1975, say, still make sense? Some of them, I presume. But all of them?
Sunsetting these regulations and waiting to see if anyone complains (in the public domain) seems reasonable.
‘He told agencies that oversee everything from gas pipelines to power plants to insert “sunset” provisions that would cause regulations to automatically expire by October 2026. If the agencies wanted to keep a rule, it could only be extended for a maximum of five years at a time.
‘Experts say the directive faces enormous legal hurdles. But it was one of three executive orders from Mr. Trump on Wednesday in which he declared that he was pursuing new shortcuts to weaken or eliminate regulations.’
Trump orders agencies to ‘sunset’ environmental protections
The argument against the sunset move is that any change must go through a public comment proceeding after giving the public adequate notice of the intended move. This is intended to give those who rely on the regulation a voice. For example, if you built a business around a particular rule, you may be affected pejoratively by its removal.
Of course, there is nothing to stop commentary outside of an official proceeding.
‘William Buzbee, a law professor at Georgetown University, raised questions about the legality of Trump’s maneuver.
‘“This strategy of the Trump administration clashes with what is known as consistency or policy change doctrine,” Buzbee told The Hill in an email.
‘“The Supreme Court, including the current Roberts Court, has repeatedly reaffirmed that agencies seeking to change a policy set forth in a regulation have to go through a new notice-and-comment proceeding for each regulation, offer ‘good reasons’ for the change, and address changing facts and reliance interests developed in light of the earlier regulation. Adding a sunset provision without going through a full notice-and-comment proceedings for each regulation to be newly subject to a sunset provision seems intended to skirt the vetting and public accountability required by consistency doctrine,” he said.’
Trump’s deregulation push: Several steps forward—and some sideways
Deregulation will fail if it turns into re-regulation.
‘Trump’s deregulation drive is real, but lurking in the mix are “swamp things”—policies that, whether by accident or design, reinforce government power. Case in point: tariffs set to slap consumers on today’s “Liberation Day,” a floated “DOGE dividend” that echoes universal basic income schemes, and federal meddling in university funding to police speech instead of just eliminating federal funding.
‘This week brought two new executive orders that, rather than draining the swamp, risk refilling it. One cracks down on ticket “scalping” in the concert industry, expanding federal oversight of pricing in “mere” entertainment likely to ricochet across other sectors. The other creates an “Investment Accelerator” to fast-track billion-dollar projects—in a way that can inappropriately legitimize CHIPS Act-style industrial policy.’
Trump Directs Agencies to Quickly Repeal Unlawful Regulations, Without Notice-and-Comment
What’s the defense for retaining unlawful regulations?
Also, if the Administration is exploiting part of the Administrative Procedure Act to expedite the process, how is this problematic?
Loper Bright, Jarkesey, Ohio v. EPA all come into play, here.
‘On April 9, 2025, President Trump signed a Presidential Memorandum (Memorandum) entitled Directing the Repeal of Unlawful Regulations. The Memorandum – part of a broader “Department of Government Efficiency” Deregulatory Initiative reflected in Executive Order 14219 and other Administration actions – directs agencies to prioritize the repeal of regulations that are unlawful under 10 recent U.S. Supreme Court cases. Further, the Memorandum instructs that “[i]n effectuating” such repeals, agencies should proceed “without notice and comment” pursuant to a statutory “good cause” exception in the Administrative Procedure Act (APA).
‘Below, we discuss the types of rules in the Administration’s crosshairs, how the Administration intends for agencies to skip the APA’s notice-and-comment requirements, and considerations for regulated entities.’
DOJ Announces Policy Ending “Regulation by Prosecution” of Digital Assets
If Congress wants the DoJ to regulate crypto, it’s going to have to pass some laws.
‘On April 7, 2025, Deputy Attorney General Todd Blanche issued a memorandum instructing federal prosecutors to cease pursuing "litigation or enforcement actions that have the effect of superimposing regulatory frameworks on digital assets," noting that regulators and not prosecutors will "do this work outside the punitive criminal justice framework." Under the new policy, the Justice Department will prioritize investigations and prosecutions involving individuals who defraud investors in digital assets or who use digital assets in furtherance of other crimes, including offenses related to terrorism, narcotics trafficking, human trafficking, organized crime, hacking, and cartel and gang financing. The memorandum indicates that the Justice Department plans to close all ongoing investigations that are inconsistent with the new policy. ‘
REDUCING ANTI-COMPETITIVE REGULATORY BARRIERS
The FTC and the DoJ have seventy days to come up with a list of rules and regulations that end up creating barriers to competition and to develop a plan for either rescinding or modifying them to reduce the putative anti-competitive impact.
Why hasn’t this been done before?
‘Federal regulations should not predetermine economic winners and losers. Yet some regulations operate to exclude new market entrants. Regulations that reduce competition, entrepreneurship, and innovation — as well as the benefits they create for American consumers — should be eliminated. This order commences the process for eliminating anti-competitive regulations to revitalize the American economy.’
ZERO-BASED REGULATORY BUDGETING TO UNLEASH AMERICAN ENERGY
“Governance-by-regulator” is a pithy phrase. So is “to the extent permitted by law.”
‘This regime of governance-by-regulator has imposed particularly severe costs on energy production, where innovation is critical. The net result is an energy landscape perpetually trapped in the 1970s. By rescinding outdated regulations that serve as a drag on progress, we can stimulate innovation and deliver prosperity to everyday Americans.
‘This order directs certain agencies to incorporate a sunset provision into their regulations governing energy production to the extent permitted by law, thus compelling those agencies to reexamine their regulations periodically to ensure that those rules serve the public good. ‘