“I’m gonna be working with Congress where I can,” President Obama
said in early 2014. “But I’m also gonna act on my own if Congress is
deadlocked. I’ve got a pen to take executive actions where Congress
won’t.”
The former president lived up to this promise, issuing a barrage of executive orders, rules, regulations and other administrative actions. He sometimes seemed to be a super-legislator rather than an executive, rewriting Obamacare, the Clean Air Act and many other laws on his own.
The courts slapped down some of his overreach, but much is still in place, and President Trump ran for office on a promise to declare war on Obama’s regulations. When he started work on Friday, Trump began hitting some bullseyes in a target-rich environment.
Many conservatives expect a blitzkrieg, or a nuclear strike in which Trump wipes out Obama’s executive actions with a few strokes of the pen. But while some of Obama’s executive actions were simple orders that can be reversed, many are products of an extensive rulemaking process that will take time to take down.
In addition to action by Trump, Congress has a few missiles in its arsenal, thanks to an almost never used 1996 law, the Congressional Review Act.
The “most wanted list” of burdensome and costly regulations, which conservatives regard as a structural impediment to American competitiveness, includes several different classes of target. These will require the Trump administration to use a variety of weaponry. And the new administration will need to put in as much time and work killing or reforming policies as Obama’s administration spent creating them.
If the Trump administration doesn’t follow the rules of engagement, its efforts will fail. A liberal group will sue and win in federal court, and Obama’s rule will stand.
Top Targets
“In every area of regulation,” Hoover Institution research fellow Adam White says, “there’s at least one or two regulations that are so big, so costly, so pushing the boundaries of their legal authority that they are prime targets.”
These targets fit into three categories: The most costly, the most legally dubious and the most controversial.
The most economically destructive rules are at the top of Trump’s hit list. And right in the lead of these are the Environmental Protection Agency’s Clean Power Plan and the Labor Department’s overtime rule.
“In light of Trump’s campaign’s priorities of job creation,” White said, “I’d expect them to look at some of the rules that they’ve imposed on fracking like the methane rule.”
Also in the crosshairs are Obama’s “net neutrality” regulations and the so-called fiduciary rule which, in effect, outlaws commission-based business models for retirement advisers.
Obama’s Justice Department and Education Department issued guidance on transgendered students’ access to school bathrooms. After the election, Obama took huge swaths of the West out of play for mining or oil and gas development by designating 1.65 million acres in Utah as a National Monument.
Airbag rule is a cautionary tale
Some of these are easier to undo. Some are more important. All of them will require significant lawyering, and many will lead to long legal fights.
“Some things a president can undo with the stroke of a pen,” explained Chris DeMuth, a Hoover Institution scholar who is consulting with Trump’s team and who served as President Ronald Reagan’s “Deregulation Czar.”
Obama’s executive actions stopping construction of the Keystone XL oil pipeline, for instance, were easy to take and easy to undo. It should be equally easy to scrap the guidance about the proper use of bathrooms. Most other important rules are a trickier.
“The new Cabinet secretary can’t just walk in and say, ‘this is gone,’ ” White said. “You have to go through the whole rulemaking process.”
DeMuth explained, “It’s not going to be ‘take these out to the woods and shoot them. You’ve got to meet the same standard for withdrawing [a rule] as for creating it.”
For instance, Obama’s Clean Power Plan was created through “notice-and-comment” rulemaking, which is how the vast majority of federal rules are made. (While notice-and-comment rulemaking has its formalities, “formal rulemaking” is a different process, which is rarely used.)
The 1946 Administrative Procedure Act lays out the process for this type of rulemaking. First an agency writes a proposed rule, a first draft of sorts, and it opens those rules for public comment. Typically, when issuing the final rule, the agency is required to respond to relevant comments. The agency must announce the final rule at least 30 days before it goes into effect.
Agencies are free to reject all arguments from commenters, but that doesn’t mean they have a free hand at rulemaking. The Administrative Procedure Act explicitly grants courts the power to reject rules made through this process on certain grounds, such as if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
That’s the main test the Trump administration needs to clear if it wants to get rid of Obama’s red tape. An episode from the Reagan administration provides a cautionary tale.
Reagan came into office in 1981 after a campaign more explicitly opposed to big government than any, arguably, in history. Given that Democrats controlled the House of Representatives, and would do so for another 14 years, Reagan was ready to use executive power to roll back the Leviathan state.
Where he could, the new president demolished rules with the stroke of a pen. His first executive order, eight days into his first term, ended federal price controls on gasoline and oil. The next day, he revoked a Jimmy Carter executive order establishing wage and price controls on federal contractors, subcontractors and vendors.
The Reagan administration also aimed to take out Carter’s regulation requiring cars to have “passive restraint systems,” that is, airbags or seat belts that closed over front-row passengers automatically.
Richard Nixon’s administration originally wrote this rule, under the 1966 National Traffic and Motor Vehicle Safety Act. After years of delays and regulatory waffling, the Carter administration ordered that all full-sized cars have such restraints by their 1982 model year.
Reagan’s National Highway Traffic Safety Administration rescinded Carter’s rule in October 1981. Two years later, the U.S. Supreme Court ruled against the Reagan administration and ordered NHTSA to implement the passive-restraint mandate.
The 1966 statute didn’t mention airbags or automatic seatbelts. It simply said NHTSA could set safety standards that were “practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms.”
It wasn’t up to the court to decide whether airbags and automatic seatbelts should be required. But the court also rejected the key Reagan administration argument that if NHTSA was within its authority in the 1970s not to mandate airbags (and clearly the statute didn’t mention airbags), then NHTSA was also free to repeal a mandate.
In other words, the Reagan administration argued that if an agency issued a regulation that was optional under the law, then that agency should be free to rescind it. The court disagreed.
It therefore found that the administration’s decision to kill the mandate was “arbitrary and capricious.” It looked closely at the NHTSA’s stated reasoning, which was that the mandate should be scrapped because automakers could comply with it in a way that didn’t improve safety, namely by installing automatic seatbelts, which passengers could disable.
The court concluded that NHTSA could simply have instead mandated airbags, and that NHTSA’s decision to not seek more information was also arbitrary and capricious. Thus the court voided NHTSA’s rescission of the rule.
The lessons of the airbag fight aren’t lost on Republican lawyers who hope to roll back or revise many Obama regulations, DeMuth said.
Just because Obama was the first president to interpret the Clean Air Act to cover power plants’ CO2 emissions doesn’t mean Trump’s EPA can simply revert to the 2005 understanding of the law. A federal court will review the Trump EPA’s argument for undoing Obama’s rule, and the EPA will need to make a reasoned argument.
Clean Power Plan
The fight against the Clean Power Plan will be one of the toughest and most complex.
Alongside Obamacare, Democrats’ main fight in 2009 was to establish federal control over greenhouse gas emissions by manufacturers and power plants. Despite winning support from huge portions of industry, Democrats failed to pass their bill through the Senate despite having a supermajority for six months.
Having failed in Congress, Obama turned to executive action. His EPA dug up a line from the Clean Air Act and used it to justify a massive new regulatory regime that requires states to reduce greenhouse gas emissions by giving more support to renewable energy and by imposing new efficiency mandates.
The legal argument supporting the Clean Power Plan is rickety, Republican lawyers argue. Here’s the background. The Clean Air Act allows the EPA to regulate “emissions of air pollutants” from “stationary sources.”
Last decade a handful of state governments banded together and sued the Bush EPA for not regulating greenhouse gases, such as carbon dioxide. Bush’s administration argued that carbon dioxide, the stuff humans exhale and trees inhale, isn’t a pollutant covered by the law.
The Supreme Court, in Massachusetts v. EPA in 2007 ruled that CO2 was covered by the law, and that the EPA had authority to regulate it.
Obama’s EPA took the next step in December 2009, issuing an “endangerment” finding. As with most rulemaking by agencies, the EPA couldn’t simply impose its will. It made a detailed case, citing scientific evidence that greenhouse gases from existing power plants pose a danger to people.
With this finding in hand, Obama’s EPA set out to create the Clean Power Plan, purportedly under the 1970 Clean Air Act, about carbon dioxide coming out of power plants. In June 2014, Obama’s administration published proposed rules and opened a comment period for more than a year.
EPA issued its final rule in August 2015,
This triggered an avalanche of lawsuits and courts have consolidated these into a single case, West Virginia v. EPA. In February, a federal court ordered the EPA to halt enforcement of the rule. The full D.C. Circuit Court heard oral arguments in September.
Then came the November general election, and now the EPA isn’t Obama’s anymore, it’s Trump’s. And Trump’s pick to run it is Oklahoma Attorney General Scott Pruitt, one of the attorneys general who sued the EPA to block the Clean Power Plan.
This creates an interesting dynamic for repealing or reforming the law. If the circuit court rules against the EPA and strikes down the Clean Power Plan, Pruitt can simply decline to appeal. If the EPA wins at the circuit court, states would appeal the ruling to the Supreme Court.
If the states lose, and the Clean Power Plan stands, and the Trump administration would have to go through the same rulemaking process as the Obama administration in order to unmake the rule. Pruitt’s EPA couldn’t merely declare the CPP dead. It would need to draft a reasoned proposed rule, in accordance with the Clean Air Act and the Administrative Procedures Act. Then EPA would have to accept comments. A final rule would need to address all relevant comments. Any slip-ups would probably trigger lawsuits, like the one against the Reagan administration over the airbag rule.
With the Clean Power Plan, there’s another complication. Undoing the Clean Power Plan, either by litigation or by a new rulemaking, would leave in place the 2009 endangerment finding upon which it is built.
If that stays in place, Pruitt’s EPA would be legally required by the Clean Air Act to issue its own regulations of power plant carbon dioxide. The result: “Even if the Pruitt EPA undoes the CPP,” White at Hoover said, “they have to decide whether to put something else in place.”
Undoing the endangerment finding would require a new rulemaking process.
Congressional Review Act
Trump administration lawyers aren’t the only troops in the deregulation army. Congress can wield the Congressional Review Act.
It was passed in 1996 to follow through on part of Newt Gingrich’s 1994 Contract With America. It provides for a fast-track method for Congress to strike down new regulations within 60 legislative days of their being finalized. As with any law, such a piece of legislation requires the president’s signature, but unlike most other laws, it cannot be filibustered by 41 senators.
Congress has successfully used the CRA only once. In 2001, Republicans won the White House after President Bill Clinton’s barrage of last-minute regulations, and they teed up Clinton’s ergonomics rule for the CRA. Clinton’s Occupational Safety and Health Administration issued new rules governing how easy office and factory equipment was to use.
Republicans swiftly passed a joint resolution disapproving of the regulation, and President George W. Bush quickly signed it.
In recent months, Obama has given the GOP Congress several good candidates for swift demolition under the CRA. Because law’s 60-day clock counts legislative days, any rules Obama has issued since June are subject to CRA review. Potential targets include a Bureau of Land Management rule about methane leaking from oil and natural gas wells and the Labor Department’s overtime rule.
Using the CRA is fast and typically filibuster-proof, but it takes time — it involves committees, for instance — so Congress will have to pick its targets judiciously.
Trump, too, will need to use good judgment, not attack regulations before his administration has the proper procedures lined up and a strong argument to back them up.
Some Republican lawyers have been working on these substantive and procedural arguments for months. With Trump in office, the battle plan will now be put into action
The former president lived up to this promise, issuing a barrage of executive orders, rules, regulations and other administrative actions. He sometimes seemed to be a super-legislator rather than an executive, rewriting Obamacare, the Clean Air Act and many other laws on his own.
The courts slapped down some of his overreach, but much is still in place, and President Trump ran for office on a promise to declare war on Obama’s regulations. When he started work on Friday, Trump began hitting some bullseyes in a target-rich environment.
Many conservatives expect a blitzkrieg, or a nuclear strike in which Trump wipes out Obama’s executive actions with a few strokes of the pen. But while some of Obama’s executive actions were simple orders that can be reversed, many are products of an extensive rulemaking process that will take time to take down.
In addition to action by Trump, Congress has a few missiles in its arsenal, thanks to an almost never used 1996 law, the Congressional Review Act.
The “most wanted list” of burdensome and costly regulations, which conservatives regard as a structural impediment to American competitiveness, includes several different classes of target. These will require the Trump administration to use a variety of weaponry. And the new administration will need to put in as much time and work killing or reforming policies as Obama’s administration spent creating them.
If the Trump administration doesn’t follow the rules of engagement, its efforts will fail. A liberal group will sue and win in federal court, and Obama’s rule will stand.
Top Targets
“In every area of regulation,” Hoover Institution research fellow Adam White says, “there’s at least one or two regulations that are so big, so costly, so pushing the boundaries of their legal authority that they are prime targets.”
These targets fit into three categories: The most costly, the most legally dubious and the most controversial.
The most economically destructive rules are at the top of Trump’s hit list. And right in the lead of these are the Environmental Protection Agency’s Clean Power Plan and the Labor Department’s overtime rule.
“In light of Trump’s campaign’s priorities of job creation,” White said, “I’d expect them to look at some of the rules that they’ve imposed on fracking like the methane rule.”
Also in the crosshairs are Obama’s “net neutrality” regulations and the so-called fiduciary rule which, in effect, outlaws commission-based business models for retirement advisers.
Obama’s Justice Department and Education Department issued guidance on transgendered students’ access to school bathrooms. After the election, Obama took huge swaths of the West out of play for mining or oil and gas development by designating 1.65 million acres in Utah as a National Monument.
Airbag rule is a cautionary tale
Some of these are easier to undo. Some are more important. All of them will require significant lawyering, and many will lead to long legal fights.
“Some things a president can undo with the stroke of a pen,” explained Chris DeMuth, a Hoover Institution scholar who is consulting with Trump’s team and who served as President Ronald Reagan’s “Deregulation Czar.”
Obama’s executive actions stopping construction of the Keystone XL oil pipeline, for instance, were easy to take and easy to undo. It should be equally easy to scrap the guidance about the proper use of bathrooms. Most other important rules are a trickier.
“The new Cabinet secretary can’t just walk in and say, ‘this is gone,’ ” White said. “You have to go through the whole rulemaking process.”
DeMuth explained, “It’s not going to be ‘take these out to the woods and shoot them. You’ve got to meet the same standard for withdrawing [a rule] as for creating it.”
For instance, Obama’s Clean Power Plan was created through “notice-and-comment” rulemaking, which is how the vast majority of federal rules are made. (While notice-and-comment rulemaking has its formalities, “formal rulemaking” is a different process, which is rarely used.)
The 1946 Administrative Procedure Act lays out the process for this type of rulemaking. First an agency writes a proposed rule, a first draft of sorts, and it opens those rules for public comment. Typically, when issuing the final rule, the agency is required to respond to relevant comments. The agency must announce the final rule at least 30 days before it goes into effect.
Agencies are free to reject all arguments from commenters, but that doesn’t mean they have a free hand at rulemaking. The Administrative Procedure Act explicitly grants courts the power to reject rules made through this process on certain grounds, such as if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
That’s the main test the Trump administration needs to clear if it wants to get rid of Obama’s red tape. An episode from the Reagan administration provides a cautionary tale.
Reagan came into office in 1981 after a campaign more explicitly opposed to big government than any, arguably, in history. Given that Democrats controlled the House of Representatives, and would do so for another 14 years, Reagan was ready to use executive power to roll back the Leviathan state.
Where he could, the new president demolished rules with the stroke of a pen. His first executive order, eight days into his first term, ended federal price controls on gasoline and oil. The next day, he revoked a Jimmy Carter executive order establishing wage and price controls on federal contractors, subcontractors and vendors.
The Reagan administration also aimed to take out Carter’s regulation requiring cars to have “passive restraint systems,” that is, airbags or seat belts that closed over front-row passengers automatically.
Richard Nixon’s administration originally wrote this rule, under the 1966 National Traffic and Motor Vehicle Safety Act. After years of delays and regulatory waffling, the Carter administration ordered that all full-sized cars have such restraints by their 1982 model year.
Reagan’s National Highway Traffic Safety Administration rescinded Carter’s rule in October 1981. Two years later, the U.S. Supreme Court ruled against the Reagan administration and ordered NHTSA to implement the passive-restraint mandate.
The 1966 statute didn’t mention airbags or automatic seatbelts. It simply said NHTSA could set safety standards that were “practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms.”
It wasn’t up to the court to decide whether airbags and automatic seatbelts should be required. But the court also rejected the key Reagan administration argument that if NHTSA was within its authority in the 1970s not to mandate airbags (and clearly the statute didn’t mention airbags), then NHTSA was also free to repeal a mandate.
In other words, the Reagan administration argued that if an agency issued a regulation that was optional under the law, then that agency should be free to rescind it. The court disagreed.
It therefore found that the administration’s decision to kill the mandate was “arbitrary and capricious.” It looked closely at the NHTSA’s stated reasoning, which was that the mandate should be scrapped because automakers could comply with it in a way that didn’t improve safety, namely by installing automatic seatbelts, which passengers could disable.
The court concluded that NHTSA could simply have instead mandated airbags, and that NHTSA’s decision to not seek more information was also arbitrary and capricious. Thus the court voided NHTSA’s rescission of the rule.
The lessons of the airbag fight aren’t lost on Republican lawyers who hope to roll back or revise many Obama regulations, DeMuth said.
Just because Obama was the first president to interpret the Clean Air Act to cover power plants’ CO2 emissions doesn’t mean Trump’s EPA can simply revert to the 2005 understanding of the law. A federal court will review the Trump EPA’s argument for undoing Obama’s rule, and the EPA will need to make a reasoned argument.
Clean Power Plan
The fight against the Clean Power Plan will be one of the toughest and most complex.
Alongside Obamacare, Democrats’ main fight in 2009 was to establish federal control over greenhouse gas emissions by manufacturers and power plants. Despite winning support from huge portions of industry, Democrats failed to pass their bill through the Senate despite having a supermajority for six months.
Having failed in Congress, Obama turned to executive action. His EPA dug up a line from the Clean Air Act and used it to justify a massive new regulatory regime that requires states to reduce greenhouse gas emissions by giving more support to renewable energy and by imposing new efficiency mandates.
The legal argument supporting the Clean Power Plan is rickety, Republican lawyers argue. Here’s the background. The Clean Air Act allows the EPA to regulate “emissions of air pollutants” from “stationary sources.”
Last decade a handful of state governments banded together and sued the Bush EPA for not regulating greenhouse gases, such as carbon dioxide. Bush’s administration argued that carbon dioxide, the stuff humans exhale and trees inhale, isn’t a pollutant covered by the law.
The Supreme Court, in Massachusetts v. EPA in 2007 ruled that CO2 was covered by the law, and that the EPA had authority to regulate it.
Obama’s EPA took the next step in December 2009, issuing an “endangerment” finding. As with most rulemaking by agencies, the EPA couldn’t simply impose its will. It made a detailed case, citing scientific evidence that greenhouse gases from existing power plants pose a danger to people.
With this finding in hand, Obama’s EPA set out to create the Clean Power Plan, purportedly under the 1970 Clean Air Act, about carbon dioxide coming out of power plants. In June 2014, Obama’s administration published proposed rules and opened a comment period for more than a year.
EPA issued its final rule in August 2015,
This triggered an avalanche of lawsuits and courts have consolidated these into a single case, West Virginia v. EPA. In February, a federal court ordered the EPA to halt enforcement of the rule. The full D.C. Circuit Court heard oral arguments in September.
Then came the November general election, and now the EPA isn’t Obama’s anymore, it’s Trump’s. And Trump’s pick to run it is Oklahoma Attorney General Scott Pruitt, one of the attorneys general who sued the EPA to block the Clean Power Plan.
This creates an interesting dynamic for repealing or reforming the law. If the circuit court rules against the EPA and strikes down the Clean Power Plan, Pruitt can simply decline to appeal. If the EPA wins at the circuit court, states would appeal the ruling to the Supreme Court.
If the states lose, and the Clean Power Plan stands, and the Trump administration would have to go through the same rulemaking process as the Obama administration in order to unmake the rule. Pruitt’s EPA couldn’t merely declare the CPP dead. It would need to draft a reasoned proposed rule, in accordance with the Clean Air Act and the Administrative Procedures Act. Then EPA would have to accept comments. A final rule would need to address all relevant comments. Any slip-ups would probably trigger lawsuits, like the one against the Reagan administration over the airbag rule.
With the Clean Power Plan, there’s another complication. Undoing the Clean Power Plan, either by litigation or by a new rulemaking, would leave in place the 2009 endangerment finding upon which it is built.
If that stays in place, Pruitt’s EPA would be legally required by the Clean Air Act to issue its own regulations of power plant carbon dioxide. The result: “Even if the Pruitt EPA undoes the CPP,” White at Hoover said, “they have to decide whether to put something else in place.”
Undoing the endangerment finding would require a new rulemaking process.
Congressional Review Act
Trump administration lawyers aren’t the only troops in the deregulation army. Congress can wield the Congressional Review Act.
It was passed in 1996 to follow through on part of Newt Gingrich’s 1994 Contract With America. It provides for a fast-track method for Congress to strike down new regulations within 60 legislative days of their being finalized. As with any law, such a piece of legislation requires the president’s signature, but unlike most other laws, it cannot be filibustered by 41 senators.
Congress has successfully used the CRA only once. In 2001, Republicans won the White House after President Bill Clinton’s barrage of last-minute regulations, and they teed up Clinton’s ergonomics rule for the CRA. Clinton’s Occupational Safety and Health Administration issued new rules governing how easy office and factory equipment was to use.
Republicans swiftly passed a joint resolution disapproving of the regulation, and President George W. Bush quickly signed it.
In recent months, Obama has given the GOP Congress several good candidates for swift demolition under the CRA. Because law’s 60-day clock counts legislative days, any rules Obama has issued since June are subject to CRA review. Potential targets include a Bureau of Land Management rule about methane leaking from oil and natural gas wells and the Labor Department’s overtime rule.
Using the CRA is fast and typically filibuster-proof, but it takes time — it involves committees, for instance — so Congress will have to pick its targets judiciously.
Trump, too, will need to use good judgment, not attack regulations before his administration has the proper procedures lined up and a strong argument to back them up.
Some Republican lawyers have been working on these substantive and procedural arguments for months. With Trump in office, the battle plan will now be put into action
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