Predicting the experience of his successor Gen. Dwight Eisenhower, President Harry Truman said this: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen. Poor Ike — it won’t be a bit like the Army. He’ll find it very frustrating.”
Donald Trump and Ted Cruz have promised to get rid of a whole host of executive actions from the Barack Obama administration. (If the Republican convention produces a different nominee, expect similar promises.) But there’s good reason to doubt how much would happen if one of them wins. The principal reason is simple: the law.
Take climate change. Just last week, Trump and Cruz made it clear that they would want to reverse the Environmental Protection Agency’s 2009 “endangerment finding,” which establishes that greenhouse gases endanger public health and welfare. The endangerment finding is the legal precondition for many of the Obama administration’s regulations designed to reduce greenhouse gas emissions, which Republicans argue are hurting the economy.
Starting with that finding, Cruz and Trump suggest that they want to scale back numerous regulatory requirements imposed by the Obama administration over the past seven years. But that’s a lot harder than you might think.
Climate change regulations include greenhouse-gas standards for cars and trucks; energy-efficiency standards for dozens of appliances, including refrigerators, clothes washers, clothes driers, and small motors; and restrictions on emissions from new and existing power plants. A new president can’t just sign a piece of paper and make all these go away.
What he can do is to direct the heads of cabinet-level agencies to initiate a process to repeal them. The law establishes the parameters of that process: Under the Administrative Procedure Act of 1946, agencies would have to begin by making a formal proposal to the public. Producing such a proposal often takes at least three months, and sometimes a year or more. The law then requires an extended period for public comments, usually two months or more. And after receiving comments, agencies usually take a while to finalize their proposals (three months would be fast).
If the executive branch operates at great speed, it might be able to get through the process of eliminating a single regulation in about a year. If the new administration operates in a more regular fashion, and actually wants to get rid of a host of regulations, two years — half of a presidential term — would be pretty speedy.
But this stylized picture massively understates the problem. A lot of companies have adjusted their behavior to the endangerment finding and to the recent climate change regulations. Automobile companies are producing more fuel-efficient cars. Appliance companies are selling products that are far more energy-efficient. Important energy companies have moved away from coal and toward natural gas.
The private sector often wants government to eliminate regulatory requirements, but most companies also like certainty and predictability. When they have made major economic investments in direct response to those requirements, some of them will not welcome, and might even abhor, a dramatic change in course. For any new administration, that matters, because it’s not exactly easy to explain to the public why it is determined to repeal regulations that consumers, environmentalists, and important segments of the regulated sector all want to remain on the books.
Then there are the federal courts, which will strike down any actions they deem inconsistent with law. Courts have already upheld the endangerment finding, and it would probably be impossible for a new administration to reverse it, because the science so clearly supports it. If the EPA is eliminating greenhouse-gas regulations for new cars, it will not be allowed to deny that that man-made climate change is a serious problem. (Climate change denialism would be unlikely to stand up in court.) Nor would the EPA be permitted to deny that greenhouse gases are “pollutants” within the meaning of the Clean Air Act. (The Supreme Court resolved that one back in 2007.)
The upshot? If a Republican president wants to repeal fuel-economy and energy-efficiency regulations, it would be exceptionally challenging (as well as time-consuming) to produce a legally sufficient justification — and there’s no certainty of ultimate success. Is that really the right way to spend the first two years of a new administration?
Climate change regulations are just one example. Trump and Cruz have indicated that they want to repeal many executive actions, but the same points hold for them as well — including regulations involving food safety, disability discrimination, highway safety, worker safety and even health care. Sure, a new president could act swiftly if he could persuade Congress to repeal those regulations. But for high-profile issues, he would need a filibuster-proof majority in both houses. That’s not likely.
It’s true that a new administration might delay effective dates or exercise prosecutorial discretion so as to soften the effects of mandates from the Obama administration. But in many cases, private sector compliance is already well underway, and there’s not much to be done about it. Poor Donald, poor Ted — any Republican president would find it very frustrating.
By Cass R. Sunstein
Bloomberg
Cass R. Sunstein, the former administrator of the White House Office of Information and Regulatory Affairs, is the Robert Walmsley university professor at Harvard Law School and a Bloomberg View columnist. — Ed
