When Donald Trump ascended to the presidency, one of his main goals was to undo the democratic legacy of Barack Obama, not least his regulatory legacy. That has raised hackles among some who see Trump’s agenda as ignoring the will of the people on issues ranging from net neutrality to immigration to gun control.
Earlier this year, for example, California Attorney General Xavier Becerra filed a lawsuit in the U.S. Court of Appeals for the District of Columbia against the Federal Communications Commission (FCC) alleging that the Trump administration is ignoring the millions of Americans who voiced strong support for net-neutrality rules, one of the higher-profile accomplishments of Obama’s regulatory framework that have fallen by the wayside.
“Internet access is a utility – just like water and electricity,” said Mr. Becerra in a statement online. “And every consumer has a right to access online content without interference or manipulation by their internet service provider. However, in repealing the net neutrality rules, the FCC ignored consumers’ strong support for a free and open internet.”
State petitioners, including New York, Connecticut, Hawaii and others, allege the FCC order was arbitrary, capricious and an abuse of discretion within the meaning of the Administrative Procedure Act (APA).
“The Trump Administration is not complying with the APA —which puts limits and restrictions on how agencies can issue and undo rules—in many cases where they are trying to undo Obama-era regulations,” said Adam Pulver, attorney with the Public Citizen Litigation Group, a watchdog organization.
But the FCC has responded, on September 30 by seeking a federal injunction in the Eastern District of California that would block the state’s net neutrality law that is set to take effect Jan. 1. The federal government alleges it unlawfully imposes burdensome state regulations on the free internet and violates the Supremacy Clause of the U.S. Constitution.
“Not only is California’s Internet regulation law illegal, it also hurts consumers,” said FCC Chairman Ajit Pai in a statement online. “The law prohibits many free-data plans, which allow consumers to stream video, music, and the like exempt from any data limits.”
“California imposes more stringent requirements than the FCC in that SB-822 broadly prohibits companies from offering ‘free data’ arrangements that exempt certain Internet traffic from data limitations and apparently prevents ISPs from offering or providing a range of specialized services over the same last-mile connection,” wrote attorneys for the Department of Justice.
Immigration policy is another that has been squarely in Trump’s target, including the International Entrepreneur Parole rule for foreign investors. The National Venture Capital Association responded with a lawsuit in the U.S. District Court for the District of Columbia when the Trump administration rescinded it without notice of proper rulemaking, “NVCA’s members have invested, will invest or would consider investing in new companies that have founders who could apply for parole under the Rule,” wrote NVCA attorneys. “The delay of the Rule puts these investments in jeopardy and chills potential future investments.”
Atma and Anand Krishna, for example, who would have qualified to apply for parole may have lost an opportunity to come to the United States and grow the business into which they have dedicated significant time and resources.
“Their inability to remain in or come to the United States will make it far harder for them to grow LotusPay and attract additional U.S.-based and international investment,” wrote attorneys for the plaintiffs. “And it will make it impossible for them to expand their operations and the product to the United States, which they have otherwise considered doing.”
The International Entrepreneur Parole rule was enacted by the Obama administration to take effect in July 2017 to provide a way for foreign entrepreneurs to stay in America for a period of up to five years as a resident.
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“International Entrepreneur Parole was one of the purest merit-based immigration propositions you could think up and abolishing it belies to me a lack of sincerity on the part of the new administration regarding what their real intentions are,” said Stephen P. Pazan, special counsel with Barket Epstein in New York. “I wonder if it’s not coincidental that the people impacted by the abrogation of this particular rule are Indians or Chinese.”
The International Entrepreneur Parole rule included a two and a half year period in which foreign IT entrepreneurs, who are typically from Asian countries, would develop high-tech businesses together with U.S. partners and investors.
“It was a nonimmigrant plan that didn’t involve a visa and was poised to bring millions of dollars in business to the U.S. and create jobs,” Mr. Pazan told PacerMonitor News.
U.S. District Judge James E. Boasberg vacated the administration’s delay on December 1, 2017.
“The Trump administration was ordered by the court to take testimony and to hear comments on their desire to dismantle this rule,” Mr. Pazan said.
President Donald Trump abolished another Obama-era administrative rule that required the Social Security Administration (SSA) to submit records to the National Instant Criminal Background Check System (NICS) in order to determine whether someone can buy a firearm under the 1993 Brady Bill.
Some 93% of Americans support Brady background checks and believe systems should be in place to ensure guns are not in the hands of individuals who have been determined by federal law to be unable to use them safely, according to the Brady Campaign, a gun-control lobbyist.
“After the Sandy Hook shooting, President (Barack) Obama issued a number of executive orders and called for Congressional action,” said Paul Helmke, professor at Indiana University’s School of Public and Environmental Affairs (SPEA) and former president of the Brady Campaign. “People realize that Congress doesn’t do much of anything on many of these hot-button issues on its own.”
Although the SSA finalized the rule that would disclose records of recipients incompetent to handle their own financial affairs in December 2017, the Congressional Review Act allowed President Trump to abolish it within 60 days with his own executive order.
“This reversal is another indication that as a country we are sharply divided along party lines,” Mr. Helmke told PacerMonitor News. “One danger of that sharp divide is that it is harder for Congress to pass laws.”
As a result, the executive branch and the federal courts are filling more of the gap, which is why there was so much focus on Brett Kavanaugh’s Supreme Court seat.
“That would be fine in terms of policy if it didn’t undermine the government by the people that our founding fathers created,” said Mr. Helmke. “It weakens our structures and the fibers that bind us to the point that there’s a chance that it could all fall apart. Sooner or later, the people may decide that electing representatives just isn’t working.”
The potential danger of abandoning the legislative process is that an alternative method may not involve the people-based democracy Americans have enjoyed until now.
