The Limits of Executive Power: the Obama-trump Transition

• Publication year: 2021
• Citation: Vol. 96

96 Nebraska L. Rev. 545. The Limits of Executive Power: The Obama-Trump Transition

The Limits of Executive Power: The Obama-Trump Transition

Jody Freeman(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 546

II. Overview of Presidential Transitions .................. 547

III. Climate Change as an Illustration of Policy Change.... 551
A. Obama-Era Climate Change Policy ................ 552
B. Trump Administration Changes to Climate Change Policy ............................................. 557

IV. Constraints on Presidential Policy Reversals ........... 563

V. Conclusion ............................................ 571

VI. Question and Answer Session ......................... 571
A. Question 1-Failure to Comply with Paris Accord . . 571
B. Question 2-Informal Agency Rulemaking ......... 573
C. Question 3-The Kyoto Protocol ................... 573
D. Question 4-Chevron Deference .................... 574
E. Question 5-Separation of Powers ................. 575

Good afternoon. Thank you so much for inviting me to deliver the Pound Lecture, which is an honor. I am aware of its special place in

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the tradition of the Nebraska Law School, and I know many of the distinguished professors who have delivered it in the past. I could not be more delighted to be here. I want to thank your dean in particular for hosting me.

I. INTRODUCTION

I thought I would talk today about the limits of executive power to rescind or weaken regulations. It is a particularly interesting time to think about this topic because we are in a moment of political transition following the 2016 presidential election.(fn1) We are less than two months into the new Trump Administration, and it appears that the new President has very different policies than the prior one. So it is an opportune time to think about the ways in which presidents make policy and to discuss the constraints on a new president who wishes to dramatically reverse course using the variety of instruments at his disposal. I will add some things about Congress too, because although Congress may not look especially productive at the moment, there is a great deal of activity behind the scenes. The most obvious instrument Congress has to effect policy change is, of course, legislation, but it also possesses some "superpowers" in the form of the Congressional Review Act,(fn2) a statute that most people have never heard of but which I want to discuss because it has special salience during presidential transitions. My intent today is to give you some understanding of all of the tools being used at the moment to undo or amend the policies of the prior Administration.

Now, how you feel about this shift is up to you. I have my views, which are not a mystery because they are publicly known,(fn3) and I am happy to elaborate on them. But regardless of what one thinks about the underlying substantive policies-whether on immigration, the environment, or trade, for example-it is important to understand the

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way these regulatory instruments work and the extent to which they are constrained by law.

II. OVERVIEW OF PRESIDENTIAL TRANSITIONS

Let me begin by providing an overview of a typical transition. Many of you are familiar with what happens, but some of you may not be, and it is helpful to explain the normal order of operations when a new Administration takes over.

First of all, all political appointees resign.(fn4) This includes the top-level appointees in the Executive Branch both in the White House and in the agencies.

Second, "acting" senior Executive Branch officials are put in place. These officials are often holdovers from the prior Administration, as we saw with Sally Yates at the Department of Justice.(fn5) The acting leadership stays in place until the Senate confirms the President's new nominees.(fn6) This process is either slower or faster depending on the pace of the nominations offered by the President and the amount of opposition they encounter in the Senate.

By now, all of the agencies I study most closely because they have the lion's share of authority over federal environmental, natural-resource, and energy policy have their leadership confirmed: Scott Pruitt at the Environmental Protection Agency (EPA),(fn7) Ryan Zinke at the Department of the Interior,(fn8) Rick Perry at the Department of Energy (DOE),(fn9) and Rex Tillerson at the State Department.(fn10) As we

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have seen, Mr. Pruitt faced the strongest opposition, based on concerns about his prior legal positions as Attorney General of Oklahoma, his questioning of the scientific consensus on climate change, and potential ethical conflicts.(fn11) The Federal Energy Regulatory Commission, which regulates the electricity sector and approves energy infrastructure like natural gas pipelines, currently lacks a quorum, so business at that independent regulatory agency has largely ground to a halt.(fn12) And many other agencies have yet to see their heads confirmed. We still do not have a Secretary of Agriculture,(fn13) for example, a position of obvious importance here in Nebraska. The ranks below these top jobs are largely unfilled at the moment; the Trump Administration has moved very slowly to fill the thousands of government jobs it is entitled to fill.(fn14) This could have serious repercussions if it goes on for much longer.

The third aspect of presidential transitions to note is that career staff in the agencies typically stay in place. These employees are civil servants with certain job-security protections, and they do not tend to leave unless there is a reason for them to do so. It is, by design, hard to fire these employees, although agency heads have significant flexibility to reassign them.(fn15)

In addition to personnel, a variety of other things change quite a bit during the transition. For example, websites are rebuilt to reflect the commitments of the new Administration. The White House website was updated almost immediately following the President's swear-

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ing in.(fn16) So, unsurprisingly, President Obama's "Climate Action Plan" is nowhere to be found, for example. And Executive Branch agencies are now following suit. That means if you care about material that appears on a website you visit frequently, you may want to save the relevant documents, because they can disappear or become harder to find. There is significant concern that this Administration will go further than simply making cosmetic changes; scientists are worried that much of the federal government's scientific data on climate change will disappear.(fn17)

Sometimes, in addition to revising websites, the new Administration will put constraints in place to prevent career staff in the agencies from speaking to the press without supervision from political appointees to ensure message discipline. This is the first Administration I can think of that issued a broad "gag order" of this kind, essentially telling career staff to say nothing.(fn18)

This White House also went so far as to freeze contracts,(fn19) which affects some of the basic day-to-day work of government. We are talking about everything from toxic-waste cleanups to a variety of operational contracts that need to be executed to do the business of government. If these are frozen for a period of time, it can be very disabling.

It is also typical for a new Administration to temporarily freeze regulations that have not been finalized in order to review the rules for consistency with the new Administration's priorities.(fn20) Some of these rules may have been submitted for regulatory review to the Office of Information and Regulatory Affairs (OIRA)-which pursuant to Executive Order 12,866 requires agencies to submit significant regulations and detailed cost-benefit analyses to the White House.(fn21) Some

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may have been proposed but not yet finalized by the responsible agency. While every outgoing Administration rushes to complete significant rulemakings before leaving office, several major rules typically get caught in these "regulatory freeze" orders.

Soon after a transition, the new Administration must prepare the President's proposed budget. The budget document reflects the President's priorities and speaks to his constituencies. It appears as if this budget seeks to dramatically cut funding for the agencies, signaling President Trump's de-regulatory agenda.(fn22) Some observers anticipate very deep cuts for the most disfavored agencies, like the EPA.(fn23) It is important to note, however, that the presidential budget is not self-executing. It is essentially a wish list. Congress ultimately decides which, if any, of the President's proposals will be converted into law.

In addition to nominations, gag orders, regulatory freezes, and budget preparation, transitions naturally bring substantive policy shifts, many of which are announced with much fanfare via executive orders signed soon after a new President takes office. These orders are a highly visible way for an incoming President to signal that there is a new sheriff in town, and the Trump Administration has made profligate use of this mechanism. Here [showing PowerPoint slide] is a screen shot of the White House website with a number of new executive orders and presidential memoranda listed.(fn24) You see, for example, the immigration order that the courts have at least temporarily blocked and which the White House has said it will replace.(fn25) As a practical matter, there is not much difference between executive orders and presidential memoranda-both can be used to direct executive agencies to undertake certain regulatory or deregulatory efforts, or to reconsider certain policies.(fn26) Executive orders are considered to be more formal than presidential memos-they are required to be

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published in the Federal Register and given an...