Trump’s “Regulatory Bill of Rights”: Where to Go Next

In a previous post, we discussed the new and welcome regulatory changes made by President Trump in Executive Order 13924 last month, a significant victory for civil liberties. But while excitement is warranted for these positive developments, many further reforms, such as objective and enforceable limits delivering upon the principles affirmed in the Order, will be needed to secure these principles in practice.

6(a) The Government should bear the burden of proving an alleged violation of law; the subject of enforcement should not bear the burden of proving compliance.

Although the most objective of the newly articulated principles, this acknowledgement could be improved by affirming that government bears the burden not only on substantive issues of law, but also on deviations from established procedure. NCLA’s comments highlight the importance of demonstrating strong justifications for procedural deviations during temporary exigencies, a recommendation that still stands.

6(b) Administrative enforcement should be prompt and fair.

Unfortunately, a vague promise of “prompt” enforcement does not go far to assure individuals like Ms. Moroney that definite resolution is coming. Enforcement actions that go on for five, ten, or more years are harmful to both the accused and the agency. Reasonable objective limits must be imposed, such as by implementing a two-year statute of limitations, to ensure that legal claims are alleged, litigated, and resolved in a timely manner.

6(c) Administrative adjudicators should be independent of enforcement staff.

Independence is a welcome goal, but equally important is analyzing the means used to achieve it. NCLA suggested a “cooling-off” period to prevent communication between enforcement staff and ALJs prior to adjudication as one step towards closing the revolving door, and agency heads should heed this advice when implementing the Order. The U.S. Constitution guarantees access to an independent judiciary, and this independence must be preserved in legal actions before an ALJ.

6(d) Consistent with any executive branch confidentiality interests, the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action.

Many agencies reject civil Brady altogether—and even for the ones that don’t, enforcement staff are not always trained to recognize and understand their affirmative obligations pursuant to it and other relevant evidentiary norms. NCLA’s submitted comments noted a particularly egregious example in a recent deposition where an SEC employee refused to acknowledge either that the SEC adopted civil Brady or whether he received training to conduct his Brady obligations. Further, Brady disclosures must be made in a timely manner, ideally alongside any issued notice of violation. Withholding evidence until right before trial could be consistent with the text of §6(d) while blatantly counter to established principles of fairness: such practices must be explicitly rejected.

6(e) All rules of evidence and procedure should be public, clear, and effective.

NCLA advocated for requiring adherence to the Federal Rules of Evidence and Federal Rules of Civil Procedure, which better protect defendants’ access to disclosure and discovery and allows the levying of sanctions to protect against abusive practices undermining that access. The adopted language falls far short of adopting these judicially tested and refined rules across the board. While requiring more formal procedures would admittedly result in tradeoffs, such as lost efficiencies in agency adjudication, NCLA’s comments reflect the importance of ensuring that such efficiencies are not maintained at the expense of enforcement targets’ due process rights.

6(f) Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law.

Concrete limits are needed to ensure that agencies follow through on these standards, especially for individuals and small businesses that are acutely vulnerable to coercion. Moreover, agencies sometimes withhold information about the full extent of the fines that they are seeking until immediately before trial. Such delay greatly inhibits enforcement targets’ abilities to adequately prepare defenses and determine their optimal litigation strategies.

6(g) Administrative enforcement should be free of improper Government coercion.

It is difficult to discern what protections—if any—are afforded by §6(g) as worded. Many NCLA cases exist specifically because agencies frequently employ coercive practices—such as forcibly exiling individuals from their chosen profession, requiring them to abide by lifetime gag orders, or threatening them with ruinous fines. Often, these measures are designed to induce individuals to settle—a tactic that circuitously empowers agency enforcement to continue such practices.

6(h) Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.

While agencies sometimes spend years conducting their pre-litigation investigations, many are not nearly as generous in providing respondents sufficient time to respond. Mr. Hamilton’s case illustrates this principle well. After years of preparing its case with the EPA, the Corps of Engineers gave Mr. Hamilton only ten days to respond with his “intent to cooperate” and provide all relevant evidence. Such unbalanced expectations unfairly burden challengers and compromise their ability to seek justice.

6(i) Administrative enforcement should be free of unfair surprise.

The subjective nature of this protection provides ample room for the government to fall short of following through with its duty to provide due process, a concern that underlies many of our reservations about these new regulatory principles. Because administrative adjudication by design undermines these protections, concrete limitations are necessary to prevent their further erosion.

6(j) Agencies must be accountable for their administrative enforcement decisions.

Cross-examination of accusers is a prerequisite for accountability, and one that should be explicitly protected. Beyond this, transparency around potential conflicts of interest in the enforcement space is also much needed. As was done in Mr. Hamilton’s case and many others, agencies hire former employees as experts to testify against respondents. For this reason, NCLA’s comments called for all hired investigators’ and witnesses’ public sector payroll history to be publicly disclosed, a recommendation that agencies would be well-advised to heed.

July 14, 2020