Trump’s vow to undo Obama rules? Not so fast

Ledyard King
The Homer City Generating Station in Pennsylvania. The owners of the coal-fired have sued the Environmental Protection Agency over an Obama administration rule cutting sulfur dioxide pollution.

WASHINGTON — President-elect Donald Trump campaigned on a vow to repeal what he claims are job-killing federal regulations, including rules limiting power plant emissions, protecting rivers and streams, and preventing banks from reckless lending.

Easier said than done.

The same deliberate process used to enact the Clean Power Plant rule, the “waters of the U.S.” Clean Water Rule, or regulations under the Dodd-Frank law designed to clamp down on Wall Street usually requires the same long slog to undo them, making quick repeal unattainable.

In general, rule changes originate from the agencies who must offer a legal, scientific or other legitimate reason in defense of the proposed change, and solicit public comments first before a new rule or its repeal can take effect. In most cases, the final rule may not become effective until at least 30 days after its publication in the Federal Register.

“The process is laborious, but that shouldn’t stop every agency head from setting it in motion,” Andy Koenig, vice president of policy at the Koch-affiliated Freedom Partners Chamber of Commerce, wrote in a recent column on the group’s website. “The very fact that it is so time-consuming makes it essential for agencies to start the process immediately.”

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But a Republican president and a compliant Congress controlled by Republicans can still do quite a bit in short order to block a host of proposed regulations or reverse rules that were recently implemented. Overall, critics say regulations pose a $4 trillion drag  on to the U.S. economy every year, according to some estimates, though agencies also design rules to maximize economic benefits.

Stakeholders have been weighing in about the rules they'd like to see tossed.

Among them is the House Freedom Caucus, the hard right faction of House lawmakers who have clashed with congressional leaders in recent years. The group Wednesday asked the incoming Trump administration to jettison 227 rules its members view as burdensome, costly or unworkable, including ones setting nutrition standards for school lunches, requiring certain animal and plant inspections, and development of alternative fuels.

Despite some steep hurdles, here’s what Trump and Congress can do:

Incoming presidents can prevent regulations that have yet to be finalized from ever taking effect.

It’s standard practice for a new administration to freeze any regulations that are in the pipeline until the incoming regime can review them, said Jerry Ellig, senior research fellow at George Mason University’s Mercatus Center.

President Obama did just than when he came into office in 2009, as did his predecessors.

“If it’s something that the current administration has finished and sent to the Federal Register but it isn’t published before Inauguration Day, then it’s easy for a new administration to pull those rules back,” he said.

Many could still go forward after the review is complete and the Trump administration supports them.

Congress also has a limited window where it can undo rules with a simple majority vote that cannot be filibustered. 

Such “resolutions of disapproval” must be passed and signed within 60 legislative days from their publication in the federal register and their insertion into the Congressional Record.

Under the Congressional Review Act, agencies must report on their rulemaking activities to Congress and provide lawmakers a legislative roadmap to overturn those rules if they oppose them, according to the Congressional Research Service.

The Mercatus Center lists 172 Obama administration rules adopted since June 9 that could be subject to the review act. They include rules on implementing school wellness policies, regulating municipal solid waste landfills and food labeling guidelines.

But the incoming Congress will have to be picky because the law requires that rule reversals can only be done one at a time. With all the other priorities facing them such as working on a budget and considering Trump’s nominees, there’s may not be much floor time for wholesale regulatory rollback, Ellig said.

That hurdle helps explain why the Congressional Review Act has been used only once since it became law 20 years ago. In 2001, Congress and the George W. Bush administration overturned a Clinton administration rule setting an ergonomics standard for the workplace.

Agencies can decide not to enforce certain regulations because they’re focused on other priorities. Or the Trump administration could choose to stop defending rules if they are the subject of a court challenge.

That passive approach “is a pretty easy way to undermine laws that are already around and public protections that already exist,” said Lisa Gilbert, director of Public Citizen’s Congress Watch, a government watchdog group.

Deciding not to defend the regulation in court wouldn’t guarantee the rule’s demise.

Affected third parties would likely still be arguing for its enforcement and judges could still rule on the legality of the provision. But it could leave “open questions that we would obviously rather have answered about our regulatory state,” Gilbert said.

Lawmakers could pass a law undoing the rule.

The cleanest — and in many ways steepest — path to eliminating a rule is to have Congress approve legislation doing just that.

That’s what it will probably take to gut some of the Obama administration’s most high-profile regulations, such as ones associated with clean water, clean power, overtime protections, the Affordable Care Act and Wall Street reform.

Donald Trump speaks at a campaign rally in Grand Rapids, Mich., on Nov. 8, 2016.

Within that category, there are several approaches: using spending bills to insert language known as “riders” preventing an agency from allocating funds to enforce a regulation, using a process known as “reconciliation” to fast-track bills to undo rules, and passing bills through the regular legislative process.

That last option is least desirable for regulatory reformers because it could take years, and it gives Democrats the chance to stop a rule rollback through filibuster.

None of this includes the executive orders that President Trump could undo with a stroke of his pen, namely President Obama's deportation protections for millions of undocumented immigrants who arrived here as young children.

Trump has already unveiled his plan to tackle regulation reform: “Ask all department heads to submit a list of every wasteful and unnecessary regulation which kills jobs, and which does not improve public safety, and eliminate them.”

Gilbert, with Public Citizen, said it’s hard to predict how many of the Obama-era rules will survive.

“Our success in (preserving) any of them is going to depend on our ability to make it very clear to the American public ... what it means to take away these things that are so populist, so important,” she said. “Nobody wants to lose pay raises they’ve already achieved or protections of their health and their air.”