Administrative Law

What Happens When Trump Judges Confront Trump Administration Deregulation?

Faced with a choice between the Trump Administration and the law, these judges had no problem following the law.


In 2017, the National Highway Transportation Safety Authority (NHTSA) delayed a scheduled increase in penalties imposed on automakers for failing to comply with Corporate Average Fuel Economy (CAFE) standards. Then, in 2019, NHTSA rolled back the penalties to their 1996 levels. Several blue states and environmental groups sued in the U.S. Court of Appeals for the Second Circuit. As luck would have it, the case was assigned to three judges appointed by President Donald Trump: Richard Sullivan, Michael Park, and William Nardini. So the Trump Administration should have won,  right? Not so fast.

In a unanimous opinion issued today, the panel ruled that NHTSA's reconsideration and reduction of the penalty was untimely and unlawful. Here is the beginning of Judge Nardini's opinion for the court explaining the opinion:

During the oil crisis of the 1970s, Congress created a system of fuel economy standards for automobiles to boost fuel efficiency and drive down American dependence on foreign energy supplies. To promote those Corporate Average Fuel Economy ("CAFE") standards, Congress exposed automobile manufacturers to penalties if their annual fleets fell short of the mark. Congress first set the penalty at $5 for every tenth of a mile per gallon ("mpg") below the standard, multiplied by the number of cars in a manufacturer's fleet, subject to certain offsets.

Inflation, however, can take the bite out of fines. In recognition of this basic economic phenomenon, Congress enacted laws in 1990, 1996, and 2015 to identify civil monetary penalties that were losing ground to inflation and to periodically update them to catch up with the Consumer Price Index. After the first act, the National Highway Traffic Safety Administration ("NHTSA") and the Office of Management and Budget ("OMB") identified the CAFE penalty as among those to be adjusted. Following the 1996 law, NHTSA engaged in rulemaking that increased the CAFE penalty rate from $5 to $5.50, and then, following the 2015 law, to $14.

NHTSA shifted gears, however, starting in 2017. First, it indefinitely delayed implementation of the increase to $14. Acting on a petition for review, this Court held that the delay violated NHTSA's statutory authority and that the increase was therefore in effect for the 2019 model year. In 2019, following our decision, NHTSA issued a final rule that rolled back the penalty to $5.50 on the theory that the inflation-adjustment laws do not apply to the CAFE penalty in the first place, and that even if they did, an increase would be unwarranted as a matter of economic policy.

Following this latest move by NHTSA, we are presented with petitions for review that require us to answer two questions of statutory construction: (1) whether the penalty for violating the CAFE standards is a "civil monetary penalty" as defined in these inflation-adjustment laws; and, if so, (2) whether these laws authorized NHTSA to reconsider, in 2019, the 2016 catch-up inflation adjustment based on its economic effects. We hold that the CAFE penalty is a "civil monetary penalty" and that NHTSA's reversal of the catch-up adjustment was untimely. Accordingly, we grant the petitions for review and vacate NHTSA's final rule reversing the CAFE penalty increase.

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  1. Judges who follow the law. Imagine that.

    1. If it takes a judge you appointed to let your regularization through, maybe it’s not actually the law at work.

    2. That’s the difference between “conservative” judges and “liberal” judges.

      Conservative judges follow the law, regardless. Liberal judges decide the decision they want to make, and twist the law to get the result they want.

      1. Other differences:

        Conservative judges are bigots (or, in some cases, merely appeasers of bigots). Conservative judges tend to be superstitious and to permit that superstition to corrode their reasoning. Conservative judges are more likely to have “degrees” from fourth-tier schools with sketchy accreditation and abhorrent records.

        1. Meanwhile, liberal judges will put terms like biological sex in scare quotes or forbid anyone from mentioning it in a case where it is relevant.

          Thats some Harvard Law shit right there.

        2. Kirkland: Sees judges acting as judges should. “Muh, racists”.

          Fuck off, you fucking moron piece of shit. Do the world a favor and drink a gallon of bleach.

          1. Why not just ask Prof. Volokh to ban me?

            For violation of his “civility standards.”

            Keep up the good work, clingers!

            1. Volokh continues to not ban you, so cling on moron.

  2. One wonders about the impact of gasoline prices generally far below the projections of the 70s and absolutely below prices a few years ago.

    1. Rationally, they’d repeal the requirement, since the gas shortage it was in response to is long, long gone, and with the US now an oil exporter, unlikely to return any time soon.

      But the original, rational basis for the law has long since been supplanted by a quasi-religious crusade, and besides, the fact that the reason for a law is gone doesn’t actually license judges to stop enforcing it.

      Reluctantly, the ruling seems to be sound.

      1. foolishness

        because of CAFE, we are no longer beholden to the oil cartel, and supply and demand says oil prices will drop
        when CAFE was flatlined under Reagan, guzzling SUV’s became the rage, and oops, gas prices rose

        Vehicles are expensive and last a long time, so the effects of a purchase last a decade or more.
        CAFE helps keep the supply and demand seesaw in check

        Oh, and gas prices are low now because pandemic.

    2. the impact of gasoline prices generally far below the projections of the 70s and absolutely below prices a few years ago.

      Those were talking heads pushing books based on faulty economic analysis. Here’s the analysis which correctly predicted falling prices, and why, at the time. One could safely predict “Peak Oil”, a reprise of 1970s shortage scares, would likewise be a flop.

      The Ultimate Resource, which is free people in a free economy.

  3. Here at the Conspiracy, libertarianism usually beats democracy, but TDS beats libertarianism.

    1. Please tell me where reasoned condemnation of Trump’s moral shortcomings, incompetence, corruption and malfeasance ends, and TDS begins. No doubt you’d say my view on the boundary reflects TDS, but I’d appreciate a more generic definition (ideally in the original Russian, but I’ll take what I can get).

      1. Examples of TDS: “ideally in the original Russian”

        1. Lighten up, Francis.

      2. TDS begins at the point where you start imagining/assuming the moral shortcomings, incompetence, corruption, and malfeasance. Where his being a remarkably successful guy who falls short of perfection, and doesn’t share your ideology, isn’t sufficient, and you have to pretend he’s just a shambling collection of bad traits.

        1. Trump has only imaginary moral shortcomings?


          1. You’re trying to reason with bigotry, superstition, and ignorance, Sarcastr0. It’s a waste of time. It is far better to scorn and mock the clingers as they approach defeat and replacement.

              1. Jesus.

                Go to Stormfront with that nonsense.

                1. That video link — at your blog — suggests it’s time for you to issue another lecture on “civility standards,” Prof. Volokh.

                  Aimed at me, of course.

                  What did I do this time? Call a bigot a bigot?

              2. I gotta hand it to you. You found a video of African-Americans being assholes. I guess that cinches it. Black lives really don’t matter.

                You’re a garbage person.

          2. No, but a lot of his supposed shortcomings ARE imaginary. Collusion with Russia, for instance: That has been proven to have just been a fabrication that the feds pretended to take seriously to justify spying on his campaign, they knew the dossier was a joke even as they used it to obtain FISA warrants.

            But you’ve still got people who think that was a real scandal.

            1. Nice pivot. But that’s not what you said, above.

              TDS begins at the point where you start imagining/assuming the moral shortcomings

              Hyperbole, or you gonna stick to it?

              1. Although a bit clumsily written, I don’t think the comment was attempting to say that all of Trump’s shortcomings are imaginary, but rather that “TDS” begins when you start invoking imaginary shortcomings instead of whatever real ones he might have.

                Of course, the fact that Brett can describe Trump as “a remarkably successful guy who falls short of perfection” also says a lot about who the deluded parties are here.

                1. Brett has absolutely in the past said he doesn’t like Trump except for his policies and owning the libs, so your reading is likely correct.

                  I don’t quite see it still, but that’s probably just a sign of my BDS.

                2. Yes, that’s exactly what I meant: TDS starts where you stop being content with criticizing real shortcomings, and have to imagine worse ones to criticize.

                  “Of course, the fact that Brett can describe Trump as “a remarkably successful guy who falls short of perfection” also says a lot about who the deluded parties are here.”

                  He’s a billionaire who got elected President. In what world does that not constitute being remarkably successful? But, yeah, the guy is hardly perfect.

                  He’s criticized as a liar. Well, that hardly distinguishes him from your average politician, but it’s certainly true, even if most of the ‘lies’ are what you call “braggadocio”; He’s very boastful, and not terribly concerned about the accuracy of his boasts. Annoys the hell out of me.

                  But, then you look at the WaPo factchecker’s list of “Trump lies”, and it’s a joke. They’re counting as “lies” things that are strictly matters of opinion, even things that are true, where they disagree with him about the implications.

                  For instance: “We are going to pursue a complete renegotiation of the North American Free Trade Agreement: We’ve lost nearly a third of our manufacturing jobs in the 23 years since that terrible deal was approved.” Counted as a lie, multiple times.

                  Hm, did he renegotiate NAFTA? Why, yes, yes he did.

                  Said it in 2017. So, 23 years prior would be 1994.

                  1994, 17M manufacturing jobs.
                  2017, 12M manufacturing jobs.

                  They’re calling him a liar because 30% isn’t technically “one third”?

                  It isn’t as though they couldn’t compile a real list of lies that would be impressively large. But, no, they’ve got to pad it. TDS.

            2. Collusion with Russia, for instance: That has been proven to have just been a fabrication

              I mean, no. You might want to read the bipartisan senate report.

              1. We did. There’s no evidence Trump colluded with Russia. Zero. It’s just not there. That’s some anti-vaxxer lever nonsense you’re pushing.

                1. But Hillary is dag-nasty evil.

                  Nice article of faith you’re pushing.

        2. TDS begins at the point where you start imagining/assuming the moral shortcomings, incompetence, corruption, and malfeasance. Where his being a remarkably successful guy who falls short of perfection, and doesn’t share your ideology, isn’t sufficient, and you have to pretend he’s just a shambling collection of bad traits.

          Wait, are you referring to Trump? Because that is some Trump Derangement right there. He is not successful, and has no redeeming qualities. He is an actual real live sociopath. It isn’t about ideology at all, which is why so many Republicans have abandoned him.

          1. “He is an actual real live sociopath.”

            According to the medical degree in psychology that you printed out for yourself on Artie’s used toilet paper?

            1. I’m not sure I’d actually argue with the sociopath charge. You’d be hard put to find many politicians who aren’t at least to some extent sociopaths.

          2. “He is not successful”

            He was elected President of the United States and is a billionaire.

            Most people consider that “successful”.

        3. ‘remarkably successful guy’

          describes his father

          spoiled child describes him

  4. Judge Sullivan’s hostility toward Flynn is palpable, and, if not disqualifying, is certainly unbecoming. He seems to have adopted a posture of, “You may triumph in the end, but I will make it as painful as possible.” The process is the punishment, as they say.

    One wonders if Sullivan is trying to delay this process long enough to have a Biden Justice Department reverse its current posture. Of course, if Trump should lose the election, he would be in the position of having to pardon Flynn or trust him to the tender mercies of the judiciary. I suspect he would choose the former. Of course, Sullivan, who ominously raised the specter, may even try to muddle that.

    1. To be fair, I suspect most judges are hostile to criminals who try to gain a litigation advantage by committing perjury.

      1. Was the judge in the Central Park Five case?

        Lol dude Im just kidding I know you are a partisan hack.

        1. I admit to being a fairly partisan Republican. If being anti-criminal makes me a hack, I guess I’ll take the hit there as well

          1. No idea what connection you’re seeing with the Central Park Five, although I guess it’s another instance of obviously guilty criminals avoiding accountability for political reasons.

          2. The thing is, Noscitur, I find that around here you and I agree more than you and many around here.

            That apparently makes you a liberal hack.

      2. How many people with Democrat privilege have committed perjury in Congress or to FBI investigators have been charged?

        Zero. McCabe, Brennan, Clinton, numerous Clinton aides, Comey, Strzok, to name a few.

        Where is your non-partisan outrage for those injustices?

        1. I mean, not all of those people are Democrats to begin with. Comey, for instance. But if they were, and if none of them were charged under a Republican administration, doesn’t that perhaps suggest that maybe you’re deeply confused about the facts?

    2. Sullivan should’ve been removed, but like the Ted Steven’s case, I expect he’ll drag out the Flynn case for political advantage…

      1. Sullivan got all righteous on the Steven’s case only after it was too late to matter.

      2. How exactly did Sullivan drag the Stevens case out for political advantage?

        1. Oh, this is a good story.

          Turns out, Emmet G. Sullivan, on October 2, 2008, denied the mistrial petition of Stevens’s chief counsel, Brendan Sullivan, due to allegations of withholding evidence by prosecutors. Stevens was later found guilty…just before the election (October 27th). He would then lose the Senate election by 3,724 votes. On November 4th.

          But wait you say…

          In February 2009, FBI agent Chad Joy filed a whistleblower affidavit, alleging that prosecutors and FBI agents conspired to withhold and conceal evidence that could have resulted in a verdict of “not guilty.

          WHAAATT… You mean the government DID withhold evidence? And Sullivan denied the mistrial? The government would later move to dismiss charges

          But the damage was done. Sullivan had not granted the mistrial. The FBI had damaged the credibility of a sitting US Senator, and likely swayed the election, giving it to the Democrats. This would give Democrats the critical 60th vote in the Senate.

          1. I’m not sure I follow.

            The Stevens trial started less than two months after his arraignment, a timetable that he himself requested. I ask again, how exactly did Sullivan “drag out the [Stevens] case for political advantage”?

    3. I think a pardon would be an extraordinarily clean resolution. It’s unquestionable that the President can pardon with unlimited discretion, so that would just cleanly wrap it up.

      I bet Sullivan would like nothing more than to be rid of this case as well.

  5. I dunno. What happens when Obama judges confront Obama administration regulation? Or Bush judges, or Clinton, or ….

    1. Give it some years, the stats on that may be interesting.

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