May 22, 2017 President The White House Washington, D.C. 20500

Dear President Trump:

As State Attorneys General, many of us are involved in litigation against federal agencies based on rules, regulations, and other administrative actions, which, in our view, lack a legal basis. Federal regulatory overreach, however, is larger than any of our lawsuits. We write you today to take action to restore the constitutional balance the people established. We ask that you bring the current regulatory process under the rule of law.

The Scope of the Challenge

For too long, under both Republican and Democratic Presidents, the rules, interpretations, circulars, bulletins, guidance documents, even blog posts, of federal agencies have been treated as law. As a result, businesses small and large, communities, and individuals, live in a state of constant uncertainty, never knowing when the next rule or regulation, or new interpretation of an existing rule, will change their legal and financial obligations.

From the perspective of State Attorneys General, responsible for defending the Constitution within their States, the current regulatory framework turns separation of powers and federalism on their head. The legislative, executive, and judicial powers are combined in the hands of the executive. And whereas the Constitution allows only federal law to defeat state law, federal administrative action overrides state law and thus allows the federal executive to undermine federalism.

In sum, the existing regulatory approach presents an enormous problem for private individuals, businesses, and State Attorneys General, irrespective of political affiliation. When federal agencies have virtually full control over the law, power is concentrated at the federal level. And the party that controls the executive effectively runs the nation—from what’s taught in the nation’s schools to the way our businesses are managed.

A New Framework Is Needed

We ask that you lead a regulatory reform effort centered on two principles: restoring the lawmaking role of Congress and the power of federal courts. Here’s how each principle works.

1. Enforcing Law, Not Rules

We recommend that you call on Congress to pass legislation clarifying that regulatory agencies have no power to enforce their will in federal court unless the enforcement action is based on a

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federal law. In other words, federal agencies may not enforce rules, interpretations, guidance documents, bulletins, circulars, or any other administrative statement or action of any type or form in federal court.

After decades of deference, there are now volumes of federal rules and informal agency statements. The legislation could require federal agencies to send their rules and rule-like documents to Congress for review. Further, the legislation could set forth an agency-by-agency timetable, and leave all current regulations in place pending congressional review. The review process could begin with agencies whose rules have not been the subject of much litigation and may therefore be codified without much effort.

Part and parcel with the codification of some portion of existing rules, agencies would no longer have the ability to enforce in federal court regulations, rules, or policies other than a congressional statute (or a ratified treaty). And when deciding cases involving federal laws, courts would exercise their own independent judgment about the meaning of the text, rather than deferring to the agency’s reading of the law.

In this way, the lawmaking power would return to where it belongs—Congress—and the judiciary would reemerge as an independent adjudicator of lawsuits between the federal government and the people.

2. Review by Independent, Not In-House, Courts

Second, current law allows federal agencies to bring enforcement actions against private individuals in front of in-house, administrative law judges. To restore the role of the judiciary, agencies should be required to bring enforcement actions in Article III courts whenever they seek to impose a legal or financial obligation on an individual or business.

The vast bulk of administrative law judges (ALJs) are involved in the distribution of privileges or benefits. Only a small portion of the total number of ALJs actually adjudicate legal obligations. To be sure, replacing these ALJs with Article III judges, independent from the agencies, would still require an expansion of the federal judiciary. But, as with the conversion of rules to statutes, the conversion of ALJs workload to judges could be done step-by-step— beginning with 10 or 20 new federal judges, and then after learning from this experience, repeating the process.

Restoring the Balance of Power

The separation of powers and federalism exist to protect civil liberties. Several decades of off- road administrative action has eroded these liberties and generated numerous lawsuits. Effective reform would restore the balance of power and encourage common sense policies based on compromise and moderation, to the benefit of all Americans.

We ask you to work with Congress to bring these changes into action.

Very truly yours,

Ken Paxton Steven T. Marshall Attorney General of of Alabama

Leslie Rutledge Attorney General of Arkansas Attorney General of Arizona

Curtis Hill Attorney General of of Kansas

Jeff Landry Josh Hawley Attorney General for Louisiana Attorney General for Missouri

Doug Peterson Adam Laxalt Attorney General for Nebraska Attorney General of Nevada

Mike Hunter Alan Wilson Attorney General of Oklahoma Attorney General of South Carolina

Marty Jackley Herbert Slatery Attorney General of South Dakota Attorney General of

Patrick Morrisey Brad Schimel Attorney General for West Virginia Attorney General for Wisconsin cc: Donald F. McGahn II, Assistant to the President and White House Counsel