November 18, 2016

Rhetoric Meets Regulatory Procedure: How Will Trump Undo Eight Years of Obama-Era Rules?

Jacob D. Beaver, Stefan Bailey

President-elect Donald Trump made the repeal and roll back of Obama Administration regulations, Executive Orders and statutes a centerpiece of his campaign. While Mr. Trump’s pledges to swiftly overturn Obama-era policies yielded easy applause lines at campaign rallies, in many cases the procedural reality facing the president-elect will prove to be much more complex. In some instances, all that will be required to reverse a policy directive is a stroke of Mr. Trump’s pen. In other cases, a years-long rulemaking process will be necessary.

There is no one-size-fits-all approach; the strategy ultimately taken by the Trump Administration largely will depend upon the method by which the specific policy was brought into effect.

President-elect Trump has targeted for elimination a number of President Obama’s regulatory actions, including those limiting carbon emissions at power plants and the net neutrality Internet rule. However, the process for upending rules that have been promulgated and finalized is complicated and time consuming. To address administratively, the Trump Administration will have to engage the formal rulemaking process and legally justify the need to overturn a final rule – a process that could take several years to complete and become mired in legal challenges. The incoming administration may rely on the courts to halt or overturn certain rules, refuse to defend those Obama rules currently under judicial review, or halt judicial appeals currently being pursued by the Obama Administration.

In the cases of “midnight rules” – those that have been finalized in the last days of the Obama Administration but not yet taken effect – the Trump Administration likely will impose a moratorium on new regulations from executive departments and agencies, and include a requirement that postpones the effective dates of rules issued at the end of the Obama Administration. This approach will give the president-elect an opportunity to implement a new regulatory oversight process. Midnight rules also could be addressed through the Congressional Review Act (CRA), a rarely used tool enabling Congress to overturn administrative regulations. Importantly, the CRA cannot be filibustered in the Senate and requires only a simple majority for passage, thus undermining the minority’s (in this case, Senate Democrats) ability to impede its progress.

Rolling back rules put forth by independent regulatory agencies also will pose a challenge to the Trump Administration. Independent agencies do not submit for review their regulations to the Office of Management and Budget and are exempt from a number of rulemaking requirements, unlike executive agencies. As such, these independent bodies (such as the Securities and Exchange Commission and the National Labor Relations Board) are somewhat removed from control by a presidential administration.

The Trump team will have greater leeway to upend unfinished or proposed rulemakings simply by ordering the withdrawal of the rules in question.

Overturning President Obama’s Executive Orders and executive agreements, from a procedural standpoint, will require nothing more than President Trump’s signature. During his tenure, President Obama has issued Executive Orders pertaining to the shielding of undocumented immigrants from deportation and bound the United States to the Paris Agreement on climate change through executive agreement (bypassing Senate advice and consent). With the stroke of a pen, President Trump procedurally could wipe away those actions with immediate effect. The political ramifications, however, are another matter entirely.

In all cases, President Trump could implore Congress to pass legislation that supersedes the executive actions taken during the Obama Administration. Moving legislation through the Senate with a slim Republican majority and 60-vote requirement on major bills most certainly will be a challenge.

Beginning January 20, 2017, President-elect Trump’s unambiguous pledge to repeal and undo Obama-era regulation will be met head-on by the complexities of administrative procedure. While a number of options are available to the incoming administration to realize Mr. Trump’s campaign promises, no silver bullet exists to undo eight years of President Obama’s regulatory achievements.


Stefan Bailey

Stefan has been delivering results in Washington for more than 15 years. As a senior Congressional staffer and trusted advisor to corporate and association leaders, he has a well-earned a reputation for energetic, proactive approach to solving problems and creating opportunities. Stefan is adept at working across party lines, and providing the policy insight and strategic guidance that positively impact outcomes.

 

Jacob Beaver

Jacob is a Client Executive at Prime Policy Group, where he is an integral member of the Firm’s research team.