Throughout the campaign, you heard President Elect Donald Trump’s pledge to cancel the hundreds of executive orders and onerous regulations of the Obama administration’s eight-year tenure, but the task will be more difficult than one might expect, and there’s an unusual twist.
It is easier for a president to go around Congress to write an executive order than it is for the incoming president to cancel them, according to Andrew Rudalevige of The Washington Post. While Obama liked to say, “I’ve got a pen,” Trump will need the help of Congress now to get them off the books.
(Courtesy en-fotolia.com)
There are some actions Trump will be within his authority to cancel. The Trans-Pacific Partnership trade deal that took a bashing by Trump in the campaign, can be torpedoed because it had not been sent to Congress. Replacing the TPP with an agreement Trump believes more fair will be more difficult. While the power to regulate commerce with foreign nations is given to Congress, the negotiation of the deal is left to the president through his trade representative.
Trump can also stop regulations that are not yet finalized as of Jan. 20, and could choose not to defend Obama rules currently held up in court, like the overtime pay rule still held up there.
His proposed five-year and lifetime bans on lobbying after leaving the administration will not be enforceable unless it is put into statute, which requires Congress.
While the president’s use of his pen to go around Congress is easy, repealing an existing regulation, while possible, requires a rule making process of its own that can take months. The Supreme Court has held that a rule cannot be cancelled simply to reduce regulation. A reasoned basis for rescinding a rule is required. Unbelievably, the authority to write and issue a regulation is vested in a given agency, and a president can’t veto a regulation it deems necessary.
When Obama came into office he, too, was determined to reduce regulations he determined burdensome, and claimed that he saved some $13 billion in 2014.
Don’t look for much action on the executive order and regulation cancellation front on Day 1, even in the first 100 days. It will all depend how aggressive his cabinet members and agency department heads review all regulations and make recommendations to the president.
For four decades, presidents have been fixated on the reigning-in of the efforts of agencies to regulate, requiring them to conduct cost-benefit analysis with the Office of Information and Regulatory Affairs.
The fight over regulating is bound to be big under the Trump administration as he has pledged to remove costly barriers the business community has faced. While he will be appointing individuals well-schooled on his agenda to take this effort seriously, his Republican House and Senate, who have for eight years complained about Obama’s overreach, will also have to step up to the task.
I’m sorry to burst your bubble, if you thought it was simply going to take a rubber cancellation stamp or a Trump signature to reverse Obama’s active pen and the work of his overzealous agency heads.
Trump is going to need a Congress and cabinet committed to taking on this monster established by Big Government advocates. I’m optimistic.
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