Time For An Old-Fashioned 'Arbitrary And Capricious' Showdown!

A fun-filled administrative law battle.

Do you remember when disco and rampant highway death held sway, America ran a fleet of gas guzzling hunks of steel from one McDonald’s to another across this nation, smog produced beautiful sunsets and asthmatic children and the world was a better place because no one had ever heard of Jar-Jar Binks.

Well, Donald Trump remembers. He also remembers that black people weren’t president back then and with that in mind, his administration is looking to rollback every environmental regulation he can tie to Obama’s two terms in office.

Yesterday, the administration went after the state of California, a state that in the interests of federalism and pursuant to a law that dates back to the Nixon years, has a waiver to pursue more stringent emissions standards. In a nutshell, the law says that America needs clean air and if any state wants to make the law cleaner — as long as they aren’t being “arbitrary and capricious” — they can have their own rules.

But as Trump doesn’t like those rules, Trump says he’s revoking California’s waiver… which is a power that’s not included in the statute. It’s the sort of move that conservative textualists would dismiss out of hand if textualism was a real legal philosophy and not a slick public relations campaign for playing tortured semantic games until the Republican party gets whatever it’s looking to get.

In any event, the effort to declare California “arbitrary and capricious” seems to be somewhat, I dunno, arbitrary and capricious? Especially coming as it does after Trump went on a Tweet rampage about how automakers were disrespecting him for following California’s legal standards:

He even went so far as to accuse them of antitrust violations for agreeing that they will comply with California’s rule regardless of what Trump says marking both a welcome realization that someone in Washington remembers we have antitrust laws before promptly abusing them so badly that we’ll forget we have them for another decade.

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California will, obviously, take this to court. So will Washington and probably a gaggle of other states with a vested interest. Given the lay of the land, they will almost assuredly secure an injunction and drag this fight until well after the next election.

And given that the automakers are savvy enough to realize that there’s a roughly 2 to 1 chance that this rule will be back in place in 2021 and an almost cosmic certainty it will by 2025, they’re going to hold themselves to the new standard regardless of Trump’s maneuvering. Foreign automakers already have to comply with stricter standards overseas so this isn’t even an issue for them. Reversing course on engineering new cars doesn’t turn on a dime.

So what, exactly, is the strategy here? The rule change won’t have any immediate impact, it’ll most likely be reversed before it gets fully litigated, the auto manufacturers have no incentive to follow it anyway…. Even an unexpected courtroom triumph would just give his adversaries added precedent to blast away at the more familiar exercises in federalism that conservatives rely upon. There’s less upside here than in building three casinos in Atlantic City. A town that hasn’t been economically viable for development since those gas guzzlers roamed the streets.

Perhaps “arbitrary and capricious” should be the motto of this era.


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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.