Many of the constraints under which the federal government has traditionally operated do not result from legal prohibitions.  Instead, they are the product of norms that have been followed under administrations of both parties, in some cases for decades.  Norms often embody views about how a good government should act.  But they can also limit the ability of a presidential administration to implement its policy priorities. 

The Trump Administration has tossed aside longstanding norms in a wide range of areas.  Some of these actions have been highly visible, such as ordering the Department of Justice to prosecute political opponents and using the National Guard as a domestic police force.  Other important actions, including ones discussed below, have received significant attention primarily in specialized communities.  Courts might ultimately determine that some of the Trump Administration’s actions are illegal.  But even if these actions are upheld, they are dramatic departures from long-established norms. 

How should a subsequent administration react to this development?  Should it return to the long-established norms?  Or, instead, should it put a final nail in their coffin?  Alternatively, should it do something in between, perhaps reestablishing only some norms or resurrecting them in a different form?  And if a subsequent administration decides to resurrect some norms, should it attempt to make them more durable, perhaps by enshrining them in a statute or regulation?  

My time in the federal government acquainted me with the tradeoffs that governmental norms entail. When the next administration takes over, it will need to systematically evaluate which norms are crucial for a well-functioning democracy and which, instead, slow down the implementation of its policy priorities for relatively low payoff.

Why Norms Persist

Norms persist in part because of the expectation that they will also be followed by administrations of the opposite party.  Thus, by following a norm, an administration not only acts consistently with a vision of good government, though at the expense of constraining the implementation of its policy priorities, but also makes it more likely that a subsequent administration with different policy priorities will be similarly constrained.

The incentives change when one administration departs from long-established norms, like the Trump Administration has done.  If the only goal of norms were to constrain subsequent administrations, then the optimal strategy for the next administration would be to toss them aside as well.  This tit-for-tat strategy is the standard solution to repeated games.  Or, stated differently, unilateral disarmament is generally a poor strategy.

Obviously, following the long-established norms is less compelling after the Trump Administration tossed them aside.  But an across-the-board decision to abandon these norms is not the right strategy either because such an approach overlooks their good-government value.  That’s what makes the calculus complicated.    

Norms in the Regulatory Space

During the last two years of the Biden Administration, I had the honor of serving as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA), which, among other functions, supervises and coordinates the process for promulgating Executive Branch regulations.  To stimulate further discussion about whether a subsequent administration should restore the norms that the Trump Administration tossed aside, I offer five examples related to my work in this position.  Because at least some of them are not headline-grabbing issues about which people are likely to have strong priors, they might provide a good vehicle for dispassionate consideration of desirable future strategies with respect to norms.

Agency submissions under the Congressional Review Act.  Under the Congressional Review Act, Congress can disapprove widely-applicable rules, but not other agency decisions such as adjudicatory orders that focus on specific parties.  The waivers that the Environmental Protection Agency gives California under the Clean Air Act allowing the state to implement vehicle emissions standards that are more stringent than the federal standards had always been regarded as adjudicatory decisions because they apply to only one party: California.  But the Trump Administration treated the Biden Administration waivers as rules and submitted them to Congress seeking its disapproval under the Act.  In an unprecedented action, Congress then went along, setting aside contrary determinations by both the Government Accountability Office and the Senate Parliamentarian that the waiver was not a rule eligible for disapproval.

“Good cause” exception to notice-and-comment rulemaking.  Under the Administrative Procedure Act, federal regulations must generally be promulgated following a notice-and-comment process.  There is, however, a “good cause” exception to seeking comments from the public.  This exception had traditionally been interpreted narrowly, applying primarily to emergencies such as natural disasters or public health crises.  The Trump Administration has interpreted the exception far more broadly, permitting it to implement its policy priorities more quickly at the expense of public participation.

Length of comment periods in notice-and-comment rulemaking.  Even when it has sought public comments on regulatory proposals, the Trump Administration in many instances has significantly shortened the comment periods from the historic norm, again permitting it to implement its policy priorities more quickly at the expense of public participation.

Contacts with the Justice Department.  One of the goals of the regulatory review process conducted by OIRA is to increase the legal resilience of the regulations it reviews.  The Justice Department’s litigating divisions, like the Civil Division, which defend these regulations in court, have a deep understanding of litigation risks.  But, during my tenure, OIRA, which is part of the Office of Management and Budget (OMB) within the Executive Office of the President, could not just reach out to the Civil Division to get advice.  In the way stood post-Watergate norms, directed primarily at preventing presidential control of individual prosecutions but prophylactically applied to all interaction between the White House and the Justice Department.  The norms are embodied in “White House Contacts” policies, which required OIRA to reach out first to the OMB General Counsel’s Office, which in turn together with the White House Counsel’s Office, would reach out to the relevant leadership office at the Justice Department, which would then in turn reach out to the Civil Division.  Each of these five offices would typically need to be represented at a meeting to discuss litigation risk (in addition to the agency promulgating the regulation and, in some cases, other agencies with a strong interest in the matter).  The logistical complication of finding a time that works for so many individuals delays the regulatory process and, in some cases, makes it difficult to obtain advice that could increase the resilience of a rule.  The aggressive way in which President Trump now directs individual prosecutions suggests that norms such as these are no longer in place.

Appointment of the Chief Statistician of the United States.  The Chief Statistician, a position located within OIRA, is charged with providing coordination, guidance, and oversight for the federal statistical agencies, including the Census Bureau and the Bureau of Labor Statistics.  The position traditionally had been held by a senior career official.  But the Trump Administration replaced the career incumbent with a political appointee, perhaps signaling that it plans to politicize the work of the statistical agencies.

Insights for the Future

Readers might have different reactions to how the tradeoff between adhering to norms and advancing policies should play out with respect to each of the five norms discussed above, which the Trump Administration declined to follow.  Navigating these tradeoffs will likely need to be norm-specific because some norms are more linked to “good government” values and some norms place more constraints on the implementation of an administration’s policy priorities. 

My instinct, for example, is that shorter comment periods on proposed rules might be desirable under some circumstances, to the extent that some meaningful opportunity for public participation remains.  In contrast, politicizing the work of the statistical agencies is a bridge too far because democracy is seriously impaired if the government misleads the citizenry, particularly on matters that are of central concern and for which the government has a unique ability to provide the information. 

Others might have different instincts about these norms.  What’s important for the purposes of this essay, however, is not to present a path forward on each of the norms.  Instead, it is to suggest why the right answer has to be norm-specific because some norms are more linked to good-government values and because some norms place more constraints on the implementation of an administration’s policy priorities.  And, to the extent that some norms are reestablished, attempting to make them durable, by statute or regulation, is clearly a desirable strategy.

In summary, returning to the norms that were in place on the last day of the Biden Administration is unlikely to be the right answer.  But neither is the polar opposite: disregarding those norms simply because the Trump Administration did so.