Demonstrators outside the U.S. Supreme Court on the day of arguments in the immigration case United States v. Texas. April 18, 2016. (Photo: Diego M. Radzinschi/ALM)
Eight years ago, a newly elected President Barack Obama and his team sifted through the 291 executive orders that were issued during President George W. Bush’s two terms. Obama revoked Bush’s order restricting access to presidential papers. He also loosened Bush’s restrictions on federal funding of human embryonic stem cell research.
President-elect Donald Trump now faces a similar task—with a nearly equal number of executive orders.
Executive orders, memorandum and “guidance” letters are the chief tools the executive branch can use to set policy without going through the sometimes long, and thorny, regulatory process—and just as fast as they are signed, they can be undone as quickly.
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Indeed, Trump declared last week he will—on his first day in office—“cancel every unconstitutional executive action, memorandum and order issued by President Obama.”
Two of the Obama administration’s executive actions are likely early targets. An Obama memorandum created the Deferred Action for Parents of Americans and Lawful Permanent Residents. And a “guidance” letter on transgender students’ rights—issued by the Justice and Education departments—is now at the center of a pending U.S. Supreme Court petition.
Obama’s 258 executive orders, as of Nov. 4, range widely from amendments to the manual for courts-martial to preparing the nation for space-weather events to ensuring lawful interrogations. Obama’s gun-related orders were mostly directives to different departments to increase research efforts into safer guns or to speed up or make more reliable background checks.
During and since the election of Trump, there has been “misleading verbiage” that much of what Obama actually did by regulation “takes the form of executive orders,” said Peter Shane, an administrative law and executive powers scholar Ohio State University Michael E. Moritz College of Law.
Federal agency regulations or rules are not swiftly disposed of by the stroke of a new president’s pen.
Trump will find it more difficult, for instance, if he seeks to overturn the Obama administration’s signature climate-change effort, the Clean Power Plan, and his clean-water rule. Both sets of regulations are being challenged in federal appeals courts by an array of businesses and states. The plans came out of a lengthy regulatory process, not an executive order.
An executive order is basically a written document from the president to members of the executive branch ordering them to do something, said Saikrishna Prakash, a separation-of-power expert who teaches at the University of Virginia School of Law. There is a formal process for issuing them.
“Someone comes up with a proposal and circulates it to all the relevant executive branch agencies,” Prakash said. “They massage and refine it. It eventually gets to the president’s desk. If he is originator of the whole idea, he will sign it, but sometimes it bubbles up from below.”
What an executive order is not, he said, is “a free-floating power to do whatever the president wants.”
Trump’s promise to build a border wall, for example, would require statutory authority, not an executive order, Prakash said. Trump said Sunday night on the CBS News program 60 Minutes that parts of the proposed wall might actually be a fence.
“When we ask what can the president do [by executive order], we’re really asking what constitutional or statutory authority does he have and is he going to decide to memorialize it in an executive order,” he said.
The memoranda creating Deferred Action for Parents of Americans and Lawful Permanent Residents and expanding the Deferred Action for Childhood Arrivals program probably will not be difficult to end, Shane said. The decision to rescind Obama’s executive action will fall first into the hands of Trump’s Homeland Security secretary, Shane said.
“I don’t think it will be hard to find a secretary who will do that,” he said.
Obama’s executive action deferring deportation of parents has been temporarily enjoined by a federal judge in Texas. The U.S. Supreme Court last term split, 4-4, in upholding a decision by the U.S. Court of Appeals for the Fifth Circuit. The appeals court had earlier kept the injunction in place.
Trump could decide to “simply stop any legal proceedings that would interfere with the injunction,” Shane said.
The deferred action for children poses some complications. “You have people who have received deferred action. The memorandum described it as revocable,” Shane said. “I think the discretion the memorandum reserves is probably legally conclusive, but there would be political costs.”
Some claims during the campaign that Obama used executive orders to achieve many of his policy goals are inaccurate, such as applying the Family and Medical Leave Act to same-sex couples. That was a U.S. Labor Department regulation. But the increase in wages for government contractors can be changed by executive order.
What about Trump’s promise to allow the Keystone XL pipeline to go forward after Obama blocked it?
“Trump is going to tell [his] people, ‘I want this approved’ and they’ll find a way,” Prakash said. “It’s a discretionary decision that has to be based on certain factors under the statute. I don’t think there is anything in the statute that prevents reconsideration of that decision.”
One question that environmentalists and others will be watching closely is what Trump’s Office of Management and Budget will be directed to do with the regulatory review process, Shane said.
That process, he said, is entirely a creature of executive order.
During the presidency of Jimmy Carter, executive branch agencies were ordered to engage in cost-benefit analysis of proposed regulations. That process has worked the same, with some tweaks, in every administration since Carter’s.
What we do know about Trump’s position on regulation: On the first day, he wants his administration to pursue a “requirement that for every new federal regulation, two existing regulations must be eliminated.”
The Administrative Procedure Act governs rule-making and adjudication with federal agencies. Under the act, the repeal or amendment of a rule is defined as a rule and the act’s requirement of notice and comment—giving the public a chance to weigh in—still applies.
But a deregulation rule can go into effect immediately after the notice-and-comment period ends.
“There’s a long process for creating rules,” Prakash said. “If you want to change a rule, you have to go through that whole process again. What Trump can do is he can order [the agency] to engage in that process.”
At the end of an administration, the outgoing administration typically tries to rush through regulations. Trump can have an effect on that effort.
“If a regulation hasn’t gone into effect yet, as soon as he comes into office, they’ll have a memo from the chief of staff saying, ‘We need time to consider all rulemaking not yet final’ and they’ll basically freeze all rules,” Prakash said. “That happened in Bush 43 after Clinton left office. Clinton had worked furiously to put regulations into effect. Getting it before it becomes effective, they don’t have to restart the process to repeal it.”