White House regulatory czar Neomi Rao will be nominated to fill the vacancy left by Justice Brett Kavanaugh on the U.S. Court of Appeals for the D.C. Circuit, President Donald Trump said Tuesday.
Rao, confirmed in 2017 to lead the Office of Information and Regulatory Affairs, has spearheaded the Trump administration’s deregulatory agenda, including the effort to cut two regulations for every new one introduced. A lawsuit challenging the administration’s two-for-one order was dismissed earlier this year.
At a recent American Bar Association conference, Rao trumpeted the administration’s efforts, citing billions of dollars in regulatory cost savings. She credited deregulation for contributing to the job creation Trump has repeatedly noted in tweets and at campaign-style rallies.
“So I think this is really a tremendous amount of progress in a short period of time. And one of the things that has been the result of these efforts is there’s been a slowing of the imposition of costly new regulations and guidance documents, and kind of a fundamental shift away from the inertia that has favored a steady expansion of the regulatory state,” Rao said on Nov. 1.
If confirmed by the Senate, Rao would rise to a court widely considered the second highest in the nation, in part because it receives the bulk of cases challenging the federal government’s actions. In its reviews of those actions, the D.C. Circuit regularly weighs how much deference is owed to federal agencies.
Rao, in her Nov. 1 remarks, said her office has worked closely with federal agencies to “ensure that they are relying on what we consider to be the best interpretation of the statute—not necessarily a strained interpretation that they believe will get deference in the courts but really the fairest and best understanding of what their authority is.”
In a June speech at the Heritage Foundation, she touched on the topic of Chevron deference, a judicial doctrine under which courts have deferred to “reasonable” agency interpretations of statutes that are ambiguous. Calling for a “more robust review of regulatory action in the courts,” Rao said she believed “courts can provide more meaningful checks on agency action and authority, enforcing both statutory and constitutional due process.”
Thanks in part to her views on administrative agencies, Rao’s name has long been floated as a possible D.C. Circuit pick. Trump interviewed Rao for the seat in October after Don McGahn, in one of his last acts as White House counsel, recommended her for the D.C. Circuit.
In joining the White House last year, Rao took leave from her position as a law professor at George Mason University’s Antonin Scalia Law School, where she also founded the school’s Center for the Study of the Administrative State.
If confirmed, Rao would become the second Trump administration official—after former White House lawyer Gregory Katsas—to join the D.C. Circuit. She would also join a long list of former Justice Clarence Thomas clerks, including Katsas, nominated to federal court seats under the Trump administration.
Rao clerked for Justice Clarence Thomas from 2001 to 2002 and Judge J. Harvie Wilkinson III on the U.S. Court of Appeals for the Fourth Circuit from 1999 to 2000. Between her two clerkships, she was counsel to the Senate Judiciary Committee.
She also previously served as an associate counsel at the George W. Bush White House, from 2005 to 2006.