by Don Mayer
As a Presidential candidate, Donald J. Trump promised to “drain the swamp” –– an ambiguously appealing pledge that meant different things to different people. But it sounded good. (The weather in DC is notoriously swamp-like in summer; and, as the old saying goes, politicians who got “hooked on D.C.” and failed to come home often to their states or districts had come down with “Potomac Fever.”)
Since the 2016 campaign, President Trump and his appointees have tried to reverse the policies of earlier administrations, especially those of the Obama Administration. Many of these reversals have been challenged in court, and for good reason: the Administration quite often fails to provide reasons for the proposed changes.
It is entirely legal for the President and his appointees to announce policy changes, but many changes must be done in accordance with the Administrative Procedure Act (1947). The President and his administration often ignore those required processes, as the Washington Post explains.
To take one example, several cases challenged the Department of Health and Human Services over its decision to end some $200 million in grants to 81 programs on preventing teen pregnancy.
“The decision was taken — abruptly and without explanation — soon after the June 2017 appointment of Valerie Huber to serve as senior adviser to then-HHS Secretary Tom Price. Huber, a leader of the abstinence-only sex education movement —had previously lobbied against funding for the programs, which in her view ‘normalized teen sex.’”
According to the Post, the decision “threatened to devastate the budgets of scores of teen-pregnancy programs across the nation, many of which quickly filed suit. In its defense, HHS argued that ending the grants did not represent a policy change and therefore required no explanation under the APA.”
During a hearing in DC a year ago, U.S. District Judge Ketanji Brown Jackson asked about the manner in which the agency had acted. Can an agency “suddenly say ‘too bad, so sad’ ”. . .? The government lawyer answered yes, and the judge ordered the grants restored, adding:
“This much is clear: A federal agency that changes course abruptly without a well-reasoned explanation for its decision or that acts contrary to its own regulations is subject to having a federal court vacate its action as ‘arbitrary [and] capricious,’ ” she said in her ruling, quoting the APA’s most recognizable incantation.”
Established processes and policies should not be overturned without some clearly expressed reasons. It’s legal to try, but wrong in many other ways and, ultimately, not all that legal, either.
Finally, trying to bypass the rule of law is not effectively “draining the swamp,” whatever else that might mean to those who might find that phrase appealing.