Having clean air to breathe, clean water to drink, and safe food to eat isn't just a given in this nation—the richest, most powerful country on earth. Just ask the residents of Flint, Michigan, about that. All the good stuff needs to be protected by a vigilant cop who will stand up against the special interests that find it more compelling to make a buck than do the right thing. The days of that government cop standing up for the public interests are over, at least for the duration of the Trump regime. Ian Millhiser at Think Progress has the gory details about the choice popular vote loser Donald Trump has made for that cop, a choice that has yet to be confirmed by the Senate.
Neomi Rao is a former law clerk to Justice Clarence Thomas and a professor at the law school that was recently renamed after the late conservative icon Antonin Scalia. She’s also a leading conservative voice in favor of pushing the courts to tamp down on labor, environmental and other regulations advanced by agencies within the executive branch.
Trump has, in other words, selected a regulatory czar who isn’t just hostile towards regulation, but who wants to place permanent limits on future administrations’ ability to regulate. Though many of the most radical changes she advocates would need to come through the courts and not the office she’s been nominated to lead, if her views take hold it could become extraordinarily difficult for liberal presidents to govern even if they are swept into office with a commanding mandate. […]
Rao authored a law review article calling on the courts to revive a largely defunct doctrine known as “nondelegation,” which could potentially impose strict limits on Congress’ ability to delegate regulatory power to agencies. Though her article is noncommittal regarding just how strictly she would limit this ability, Rao praises her former boss Justice Thomas, who said agencies should be forbidden from making “generally applicable rules of private conduct.”
Under Thomas’ framework, laws like the Clean Air Act simply cannot exist, as their entire structure depends upon enabling agency experts to issue binding rules upon regulated industries. Indeed, it is questionable whether the United States would even be capable of enacting an effective environmental policy under Thomas’ framework.
Millhiser goes deep into the legal argument and the regulatory process in his piece, which is well worth the read. He also explains why her confirmation might not be a slam dunk. That's because the key to her argument of nondelegation is that individual members of Congress are given too much power in their oversight roles, that the constitution intended for the Congress to act as one body, so having individual members who can influence how agencies operate—and regulate. She wants that power to be conferred to the courts.
So the Senate—made up of individuals who Rao wants to make less relevant and less influential—is going to have to confirm her. They've stretched themselves pretty darned far to this point to push through Trump's nominees, even going so far as to having to bring in Vice President Pence to put the worst of them over the top. One would presume they would do that for Rao as well, but this time it's a lot more personal for them. This time it's existential for the Senate—she wants to severely curtail the legislative branch's check on the executive. That might be too radical even for a Republican.