The nomination of Matt Gaetz, a Congressional firebrand and longtime critic of the DOJ, to be Attorney General in the Trump Administration surprised many, even in MAGA world. 

The nomination seems to have generated a number of conspiracy theories. Perhaps this is just an excuse to allow Gaetz to resign to avoid the release of a damaging report by the House Ethics Committee (but wouldn’t the committee just leak the report?) and run for Governor of Florida in 2026, as he is widely rumored to want. Perhaps the President wants to “give a win” to anti-Trump Senate Republicans, allowing them to reject one of his nominees, and making his other nominees look “sane” by comparison and giving them better confirmation odds. 

However, we spoke to a source close to the President and familiar with his thinking who assured us that there was no four-dimensional chess here. President Trump simply believes Matt Gaetz is the best man for the job; he’s aware he will face a difficult confirmation process, but he wants to fight it. 

Many people, even Republicans sympathetic to the President, believe that Gaetz is unqualified. But it depends on what you mean by qualifications. Which is almost a philosophical question. We should note that from his seat on the House Judiciary Committee, Gaetz has spent many years scrutinizing and investigating the DOJ, so he does have some idea of the lay of the land. During the first Trump term, the DOJ and its agencies were very active in trying to sabotage the Trump Administration, in violation of the spirit of the Constitution (and, perhaps, a number of criminal statutes); under the Biden-Harris Administration and AG Garland, the DOJ was perhaps more politicized than at any time in recent American history, infamously going after parents questioning school boards and pro-life activists praying outside abortion clinics. Clearly, the prime directive of a new AG must be to clean house. And the first requirement for that job is not the ability to win a seat on the Harvard Law Review editorial board, it is fearlessness. Fearlessness and, we might add, absolute contempt for Official Washington, which regards any attack on the permanent bureaucracy as a kind of crime de lèse-majesté. On those terms, Gaetz certainly qualifies.

Chevron Ends, and a Regulatory House of Cards Tumbles

On Tuesday, a certain type of wonk on X was abuzz about a case that had just been decided by the D.C. Circuit, Marin Audubon Society v. FAA.

The environmental group sued the government agency, claiming it had violated National Environmental Policy Act (NEPA) regulations made by the White House’s Council on Environmental Quality (CEQ) when it elected not to perform an environmental impact assessment when updating plans governing tour flights over four national parks in southern California. 

The court agreed with the litigious greens that the agency’s NEPA review was inadequate. So far, so unsurprising. But that’s when the case took an unexpected twist.

Neither the petitioner nor the government had thought to question the validity of the CEQ’s regulations—but the court did. Delving into the half-century history of NEPA, the court found that CEQ had no rulemaking authority in statute; Congress had created CEQ to serve as an advisory body to agencies implementing NEPA. The council’s supposed authority to make regulations instead stemmed from a 1979 Executive Order by Jimmy Carter, which transformed CEQ from a merely advisory body into a regulatory powerhouse. CEQ spent the next forty years issuing hundreds of regulations about how government agencies should comply with NEPA, and no court thought to stop it out of deference to the executive branch.

The DC court thought differently. “There are good reasons, indeed there are compelling reasons, for us to determine the validity of the CEQ regulations once and for all,” the majority wrote. The ultimate conclusion? “CEQ … had no lawful authority to promulgate these [NEPA] regulations.”

The immediate reaction to this decision from the certain type of wonk referenced above was giddiness. NEPA, of course, is one of the most onerous environmental laws on the books, slowing federally supported infrastructure projects by requiring the creation of environmental impact statements and by opening the door to activist litigation (precisely of the sort pursued by the Audubon Society in this case). In 2016, it took the government five years, on average, to complete a NEPA-mandated environmental impact statement, so the burden of this law is real—and growing. The Biden White House just finalized “Phase 2” NEPA regulations adding more requirements about climate change. The fate of those regulations are now in doubt. (We aren’t shedding any tears…)

But it may be too early to pop the champagne. The actual effects of this ruling, stunning though it is, are far from clear.  The court did not invalidate NEPA, just the forty-year body of regulations surrounding it from CEQ. Agencies are still required to comply with the law and assess the environmental consequences of their actions… they just have less guidance about how to do that, now. CEI’s James Broughel summarizes this uncertainty really well:

Perhaps [this decision] will usher in a new era of laxer permitting reviews. It’s also possible individual agencies will, on their own, adopt regulations similar or even identical to CEQ’s. This is allowed under the D.C. Circuit Court ruling and would leave the status quo largely unchanged. Or, it could lead to a patchwork of different practices at different agencies.

On the other hand, without any implementing framework, agencies may struggle to determine what level of environmental review is required for different actions. This could paradoxically lead to more extensive reviews and slower permitting as agencies err on the side of caution to avoid litigation.

…And that’s assuming the decision holds up at all. The Trump administration will have to decide whether to appeal the court’s decision, or to allow it to stand. Safe to say that under a Democratic administration the appeal would not be in doubt. But Trump’s team could judge the net effects of this ruling positively—even though it would mean the administration (through CEQ) had less control of NEPA. We will see how they decide to play their cards.

In the meantime, we will make one observation about this ruling. As others have noted, it was made possible by the Supreme Court’s recent decisions on administrative law, namely Loper Bright Enterprises v. Raimondo, the court case overturning Chevron deference. The D.C. Circuit cited Loper Bright in its majority decision as a reason to go back and unwind half a century of implementing regulations. 

We strongly suspect the CEQ is not the only agency whose regulatory house is built on sand rather than the solid bedrock of statute. So this will not be the last court ruling of this kind. There will be more chaos and more fun to be had as the wheels come off the administrative state.

Policy News You Need To Know

#Antitrust — At UnHerd, Lee Fang chronicles Matt Gaetz’s “surprisingly consumer-friendly” record on the House Judiciary Committee, where he has bucked his party to support proposals that would rein in corporate power and special interests. Is Gaetz in fact the Huey Long-type disruptor the people need? 

#Deregulation — While we’re talking about environmental regulation, Swad Sathe, Rachel Levine, and Conrad La Joie at Niskanen compare three proposals in Congress for permitting reform. Arm yourself with the facts, because this space is heating up.

#TaxReform — Oren Cass previews next year’s tax fight and predicts that whatever package emerges from the fray will be much, much smaller than a simple re-up of the TCJA, for the simple reason that the U.S. can no longer afford such generous tax cuts in an environment where the deficit is now an astounding 8% of GDP. If he’s right, expect the fights over whose back gets scratched to be even more cutthroat than in 2017. 

#TaxReform — Speaking of, here’s the Tax Foundation’s take on the same issue. They broadly agree with Oren that a clean extension of TCJA is unfeasible and irresponsible, and offer suggestions on what to salvage.

#DEI — Heritage’s Simon Hankinson has released a detailed report about how the State Department’s commitment to “equity” has led to women receiving promotions more easily than men, analysis supported by a GAO study that found the same. We suspect if Secretary Rubio addresses this egregious gender bias in the foreign service, he will not be thanked for it.

#Chyna — While the State Department was focused on equity, China’s diplomats were making inroads in Latin America. “Few see Latin America as the U.S.’s backyard anymore,” the WSJ writes in a sobering report, as China builds ports and other major infrastructure projects to facilitate trade in the hemisphere, including a new port in Peru. The article includes a striking map showing that, in 2000, the United States was the largest trading partner for virtually all of Latin America. No longer.

#Vice — Joe Weisenthal brings to our attention a Bloomberg report from Brazil, where “20% of the money the government handed out for its flagship social program in August was spent at on-line gambling sites.” This finding should truly unify conservatives, because it shows the problems with gambling and cash welfare all at once!

#Media #LGBT — David Mastio, formerly the deputy editorial page editor at USA Today, has a juicy thread about how the AP Style Guide acts as a woke enforcer for the media industry. He claims he was demoted for tweeting about “pregnant women” instead of the AP-approved “pregnant people.”

#AI — Speaking of dystopian views about sex, will everyone have a Blade Runner-style Ana de Armas hologram girlfriend in the future? The Institute for Family Studies partnered with YouGov to poll young peoples’ attitudes toward AI relationships. The poll found that one in four young people thought AI could “replace” real-life sexual relationships in the future, although just 7 percent said they were open to such a relationship. Interestingly, heavy porn users were most open to having a romantic partner that is a robot.

#Spending #Green — The editors of National Review urge the Republican Congress to think big and repeal the Inflation Reduction Act in its entirety. We certainly expect some IRA provisions to end up on the chopping block next year, although full repeal may be too big a lift.

#Health — AEI’s Kirsten Axelson laments the price controls, IP invalidation, and other heavy-handed tactics that the Biden administration and many states have imposed on pharmaceutical companies. Such measures tend to be popular with normal people struggling with the high cost of prescription drugs, and they have proponents on both sides of the aisle. But Axelson warns they come at a high cost in terms of innovation and drug discovery.