Navigating Policymaking

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dennis dean kirk

Former Director of the Office, Former Legal AdvisorWhite House Office of Presidential Personnelof Personnel Management

Dan Huff is a former counsel to the Senate and House Judiciary Committees. In those positions, he led investigations of high-profile issues including the Obama Justice Department’s settlement slush fund. He also foresaw major policy challenges such as nationwide injunctions and advised Chairman Goodlatte on innovative solutions. In 2019, he was appointed General Deputy Assistant Secretary for enforcement at HUD, overseeing a staff of 400 and working on policy issues including AFFH.  In February 2020, Mr. Huff joined the White House where he worked directly for President Trump on some of his signature policy projects including AFFH (Affirmatively Furthering Fair Housing)

It’s Not Your Policy - It’s the President’s

  • Surround yourself with people who believe in the President’s agenda, because they will go the extra mile to get it done
  • If you are passionate about the policy reform, if you are invested in making it happen, you will be undaunted and unrelenting. You will think creatively about how to get it done
  • If you want to work in the next conservative administration, you need to be willing to help implement a dramatic course correction

Background on the Policy Making Process

  • There are two principal ways agency policy gets expressed: regulations and guidance documents
    • Regulations impose legally binding obligations or prohibitions
    • Guidance documents merely explain how the agency will exercise its broad enforcement authority

Process for Agency Regulations

  • The process for agency regulations is governed by the Administrative Procedures Act (APA)
  • There are two tracks:
    • Formal Rulemaking: establishes a trial like hearing process in which a rule is developed (almost never used)
    • Informal Rulemaking: a tangle of official steps and requirements (what we are discussing today)

Process for Informal Rulemaking

  • Regulations begin with a policy idea that has been put into written form
  • Practical Tip #1: If you have to draft a regulation, ask your general counsel for a template and focus on the summary and supplemental information sections which deal with the substance of the rule. 
  • Major regulations will require White House and interagency consultation overseen by the Office of Information and Regulatory Affairs (OIRA)
  • First, the agency will publish a proposed rule for the public to comment upon. Then, after addressing those comments, it will issue a final rule
  • Issuing a regulation can take months or even years. Guidance documents can simply be issued as white papers without any such process

Take Down Agency Guidance

  • Start with quick victories to build momentum and set the tone
  • Your first target should be the low-hanging fruit of liberal agency guidance. For example, DEI initiatives, enforcement policies based on disparate impact theory, etc. 
  • As guidance, these items can be eliminated simply and immediately
  • As you prepare to start work at your agency, peruse their website to identify major policy issues that the agency has addressed via guidance, so you know exactly what to take down on Day 1
  • When you get rid of the guidance, do it all at once, not piecemeal. It’s much harder for the opposition to stymie you when they have to fight a multifront war.

Tackle Grant Conditions

  • Each year agencies dole out hundreds of billions of dollars in taxpayer money in the form of grants
  • These grants go to organizations, states, and corporations and there are strings attached
  • The Left is adept and unabashed at using grant conditions to implement their radical agenda
  • Conservatives will not win unless we do the same
  • Practical Tip: Look for grant conditions within the agency’s Notice of Funding Availability (NOFA) which sets forth the grant conditions and application procedures
  • Matters relating to agency grants, contracts or benefits are exempt from the notice and comment requirements of the APA. (See 5 USC 553(a)(2))
  • Some agencies voluntarily impose notice and comment procedures on matters relating agency grants
    • Typically, the secretary can waive internal agency rules for “good cause,” including this one, but the best strategy is to formally eliminate voluntary application of notice and comment

Practical Tips for Making Policy Changes

  • Rule #1: Know when to get into the weeds yourself to overcome obstacles
    • You are passionate about implementing the President’s agenda
    • Your subordinates will likely not be as passionate and, therefore, will not be as motivated to think creatively to accomplish goals, especially when obstacles stand in the way
    • Sometimes you have to do it yourself
  • Rule #2: Think bold
    • To avoid confrontation and the appearance of being extreme, conservatives tend to make piecemeal changes to policy rather than completely eliminating policy
    • Bold solutions are often the most elegant and easiest to architect and justify (bright lines stop you from getting bogged down in gray areas)
  • Rule #3: Watch your language
    • The way you talk about something affects the way you think about it
    • Do not use the Left’s euphemisms in agency documents or communications (e.g. affordable housing vs. low-income housing; gender-affirming care vs. sex change)
  • Rule #4: Focus on common sense justifications
    • Keep it bold and simple so it can be reviewed faster by colleagues
    • It is difficult to argue with a common sense argument
      • For this reason, using common sense arguments to justify regulations may be superior to economic arguments

How to Deal with the Inevitable Lawsuits

  1. Seek injunction bonds
    1. Federal Rule of Civil Procedure 65(c) requires plaintiffs seeking an injunction to post a bond to pay the costs and damages sustained by the party should it be found later to have been wrongfully enjoined
    2. Activist groups will have a hard time posting the bonds especially because they might lose the money in the end if the regulation is upheld. But the government has failed to seek injunction bonds
    3. Insist that, in any policy litigation, your agency demands a significant injunction bond backed by agency economic analysis. If the court refuses to issue the bond, appeal.
  2. Stop Grantees from suing the agency
    1. There are numerous cases of grantee organizations spearheading activist litigation to stymie the policy priorities of the agency that gave them money
    2. Impose a grant condition, barring grantees from bringing policy litigation against the agency
    3. There will be legal challenges, but it is worth litigating all the way to the Supreme Court
  3. Be honest about policy justifications
    1. The Commerce Department lost on the citizenship question in the Supreme Court because their justification was contrived
    2. Be proud of the policy you are making and don’t be ashamed to proclaim the true reasons
  4. Remember they’re going to sue you anyway
    1. Toning it down won’t stop them from suing you

Most Important Quality: High Heat Tolerance

  • The most important quality for a political appointee is having a high heat tolerance - being able to stand up to the media and the mob
  • To be effective, you must ignore what the Left and the media are saying about you. In today’s climate, that takes real courage
  • The secret to steeling yourself is humility.

Know your Enemy’s Tactics

  • The Left’s tactic is to become hysterical at any conservative policy change no matter how slight. This accomplishes two things:
    • Makes political staff think a policy change is making a big impact when it’s doing almost nothing
    • Scares political appointees out of taking bolder action for fear of blowback
  • Fight back by teaching the Left the lesson that complaining will make it worse. Replace the criticized policy with something even bolder.