I won’t predict what a Trump administration will look like. Given my track record of prediction in the primaries and general elections, such punditry would not be worth much. But here is an optimistic scenario: the Republican Congress and Trump begin with their large areas of agreement rather than with those that divide them. That is good politics as well as good policy. They need one another to govern—and, in at least two key areas, they should be able to act quickly and vigorously.
First, appoint sound judges—those committed to interpreting the law as written rather than transforming the nation. Trump has offered a splendid list of Supreme Court nominees from which to fill Antonin Scalia’s vacant seat and promised to make appointments from that list. Unlike many of my colleagues in academia, I have taken him at his word. And the need to fulfill one of the most unifying objectives of the Republican coalition will lead Trump in this direction.
Second, pursue relentless deregulation of the domestic economy. The Obama administration has been the most regulation-happy administration in American history. President-elect Trump and the Republican Congress are united in believing that such regulation has harmed economic growth. A country that grows faster will become a more united nation, as opportunity expands.
Trump will need to hire committed deregulators at each federal agency. Personnel is indeed policy. The president has limited control of his agency heads once appointed, because firing them is politically costly.
A true deregulatory regime should also make it harder to engage in harmful regulation in the future, giving businesses greater confidence to investment. As president, Trump should sign a bill like the REINS Act, which requires Congress to enact important new regulations recommended by agencies before they can become law. Congress and the president can also pass legislation requiring all agencies to enact regulations only when their benefits exceed their costs—and apply this rule to independent agencies.
Finally, the new coalition can pass legislation to get rid of so-called Auer deference. That absurd doctrine forces judges to defer to agencies’ interpretation of their own regulations, reducing the incentive to construct clear regulations in the first place.
All these changes would, on balance, make costly regulation harder and would also narrow the discretion of bureaucrats. Thus, the Trump agenda, both on judges and on regulation, would comport with the president-elect’s overarching campaign theme of taking government away from the elites and restoring it to the people.
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