New York Times

March , 2018

by Adam Liptak

WASHINGTON — It has been practically a given that anyone nominated for a federal judgeship by a Republican president had to pass an unspoken litmus test — usually on abortion but often on any number of divisive social issues.

The Trump administration has a new litmus test: reining in what conservatives call “the administrative state.”

With surprising frankness, the White House has laid out a plan to fill the courts with judges devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations, often without being subject to judicial oversight. Those not on board with this agenda, the White House has said, are unlikely to be nominated by President Trump.

The criteria were first used last year in his Supreme Court selection of Neil M. Gorsuch, an appeals court judge who became something of a hero on the right for chastising his fellow jurists for being too deferential to government functionaries. And antipathy to regulations has been a factor in the selection of the dozens of judicial nominations since then.

“This is different than judicial selection in past years,” Donald F. McGahn II, the White House counsel and the chief architect of the administration’s selection process, explained in remarks last month to the Conservative Political Action Conference, noting that previous presidents had used “single-issue litmus tests” as part of their criteria.

But under Mr. Trump, he described a “coherent plan” to pair the administration’s deregulation orders with judicial nominees who find the accumulation of power in the federal bureaucracy alarming. “It’s kind of its own branch of government now, and those decisions tend to trend to the left.”

This approach has shaped what could be one of Mr. Trump’s most enduring legacies, with the potential to dramatically shrink the body of federal regulations and programs that touch almost every aspect of American life — like workplace safety, environmental protection and health care.

If it is successful, the Trump administration could come closer than any Republican White House has to achieving a goal conservatives have longed for since the New Deal: curtailing the reach of a federal government they say has grown far too large and invasive.

“It’s the next step in the national debate about the proper role of the courts,” said Leonard Leo, a prominent conservative lawyer who is advising the administration on its judicial picks. “The administrative state is 75 years old,” Mr. Leo continued. “It’s become a huge, glaring issue.”

Weeding out judicial candidates based on an ideological checklist is something Democratic and Republican presidents have long done. But it is rare for a White House to be so open about what it considers disqualifying.

“In the past, presidents and their White House counsels generally don’t make this kind of pronouncement about their agenda,” said Nan Aron, the president of the Alliance for Justice, a liberal judicial advocacy group. “That’s what’s unusual about it.”

That the concept of “the administrative state” has become so central to politics today shows how successful the Trump administration has been in elevating to the mainstream ideas that once thrived mainly on the edges of conservative and libertarian thought.

A year ago it was a term known mostly among academics to describe the vast array of federal departments and the unelected functionaries who run them. It entered the mainstream political lexicon last year after the president’s former chief strategist, Stephen K. Bannon, pledged a “deconstruction of the administrative state” under Mr. Trump.

But many conservatives now believe that a strategy centered on the administrative state creates the potential to leave a more lasting impact on the law than focusing on social issues.

“That’s actually an important shift,” said Josh Blackman, an associate professor at the South Texas College of Law in Houston. “Gay marriage, I think that issue is more or less settled. The court’s not going to overturn Roe. They’re just not. So let’s go somewhere you can put some points on the board.”

Judges who take a skeptical view of the authority vested in executive agencies are also probably more inclined to limit liberal social policies that are enforced by the government in everything from nondiscrimination to voting rights. So social conservative groups have expressed nothing but delight with Mr. Trump’s nominees.

But Democrats warn that Mr. Trump’s judicial picks are putting at risk the regulatory and social safety net that Americans need and have come to expect from their government. Conservatives have long sought to achieve this, said Senator Richard Blumenthal, Democrat of Connecticut. But rarely, he said, have they been so bold about it.

“Trump is really giving practical effect to a theoretical construct — let’s cut administrative power, let’s shut down the deep state,” Mr. Blumenthal said. These ideas, he added, have been around for a while, “but have never been weaponized in the way that Trump is doing now with his judicial nominees.”

The model jurist Mr. McGahn and others have held up is Justice Gorsuch, who replaced Antonin Scalia on the Supreme Court.

As an appellate judge, Justice Gorsuch was admired in conservative circles for being one of the most articulate advocates of reconsidering a legal doctrine known as “Chevron deference,” named after a 1984 Supreme Court decision involving the oil company.

In its decision, the court said judges must defer to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more expertise than judges and are more accountable to voters.

“Judges are not experts in the field and are not part of either political branch of the government,” Justice John Paul Stevens wrote in his majority opinion.

In a vetting interview with some of Mr. Trump’s senior aides during the transition, Judge Gorsuch answered a question about the 2015 decision that legalized same-sex marriage nationwide with a terse reply — “settled law,” he said, according to one person present. But he and Mr. McGahn went on to discuss Chevron deference at length.

In one of his most famous opinions as an appeals court judge, Justice Gorsuch wrote that Chevron allowed “executive bureaucracies to swallow huge amounts of core judicial and legislative power.”

He has taken that view with him to the Supreme Court, where he has already tried to persuade his new colleagues to revisit the Chevron question. Legal experts took notice last week when he joined Justice Clarence Thomas in a dissent critical of the court for not taking a case involving a dispute between a construction company and the Army. Justice Thomas wrote, “This court has passed up another opportunity to remedy” the accumulation of power in the federal agencies.

Many of the appeals court judges Mr. Trump has picked take a view of administrative law similar to that of Justice Gorsuch. And some have found their way onto Mr. Trump’s Supreme Court shortlist, like Brett M. Kavanaugh, a judge on the United States Court of Appeals for the District of Columbia Circuit, and Don R. Willett, who was recently confirmed to the United States Court of Appeals for the Fifth Circuit in New Orleans and has come under attack from liberal groups.

One of Mr. McGahn’s former White House deputies, Gregory Katsas, is now a judge for the District of Columbia Circuit, which is generally considered second only to the Supreme Court in importance.

Tellingly, one person who likely would have not made the cut under the Trump administration’s guidelines is Justice Scalia, who for most of his career embraced the Chevron deference doctrine.

But this thinking has been advanced by many libertarian-minded conservatives who have long doubted whether the founders envisioned the creation of many New Deal and Great Society programs and the abundance of regulations that flowed from them.

“A lot of this, if you unpack it, I think it will get back to fundamental fairness,” said Mark Holden, general counsel for Koch Industries, which is led by Charles G. and David H. Koch, two of the biggest financial backers of the effort to elect office holders committed to deregulation and free-market enterprise.

The Trump judicial selection process, Mr. Holden added, was ultimately focused on “the size and scope of government and scaling it back, to the extent that it’s counterproductive and contrary to due process.”

Not all conservatives are united on this question. And some see the effort to use the courts to undertake what is effectively a mission to decentralize decision-making authority as the definition of judicial activism.

“This is not conservative,” said Gordon Lloyd, a professor emeritus of public policy at Pepperdine University. “This is Lenin dismantling the institutions.”