Trump May Not Be Able to Remove Federal Regulations Himself - But Someone Else Could
President-elect Donald Trump has repeatedly stated that one of the goals of his new administration is to get rid of federal regulations. Three on the chopping block of particular interest to state and local government include:
- the Clean Power Plan (CPP), President Barack Obama’s signature climate change measure
- the regulations defining “Waters of the United States” (WOTUS), a significant term in the Clean Water Act defining the federal government’s jurisdiction to regulate water
- the Fair Labor Standards Act (FLSA) overtime regulations, which extend overtime pay to four million workers
Despite the fact that the new administration has a menu of options when it comes to removing final federal regulations, the most effective options are probably the most difficult for the president to achieve. If any or all of these regulations go, it won’t likely be the result of the direct efforts of the new president – the U.S. Supreme Court would likely be responsible.
What Are Trump’s Options?
Perhaps the cleanest way to undo final regulations is to rewrite or eliminate the statutory language being interpreted in the regulation. For example, the WOTUS final rule includes eight categories of jurisdictional waters. Congress could simply rewrite the Clean Water Act to define WOTUS differently from the final regulations. But getting such a change through Congress would probably be impossible as Senate Democrats would certainly filibuster any change they saw as offering less environmental protection than the final regulations.
The Trump Administration could also instruct federal agencies to rewrite regulations, but a number of challenges arise with this option. First, the agency would have to come up with new proposed regulations – and depending on the regulation, this might take a lot of time. Take the Clean Power Plan regulations, for example; they are more than 300 pages long. In addition, once new regulations are proposed, they are subject to a public comment period of either 60 or 120 days. The agency must then consider hundreds or thousands of comments before issuing final rules. Finally, when this process is complete, the new regulations would almost certainly be subject to a court challenge. Changes to agency rules must be non-arbitrary, and supporters of any of the three regulations discussed in this post would likely be willing to sue.
Another option when it comes to dealing with disfavored regulations is to simply fail to enforce them by giving agencies inadequate funding to engage in rigorous enforcement or instructing agencies to make enforcement of particular regulations a low priority. This strategy would be more effective for some regulations than others. For example, if President-elect Trump instructed the Department of Labor to ignore employees being classified as “white collar” when they should not be per the FLSA, employees could pursue lawsuits against their employers for this violation without Department of Labor involvement.
Agencies also have the option of issuing interpretations of regulations that can take those regulations in a different direction than originally intended. This strategy would not work well for dismantling seismic regulations like the Clean Power Plan or very simple, straightforward regulations like the FLSA overtime rules. Also, these interpretations can be subject to court challenge as arbitrary and can be overturned with the stroke of a pen by the next administration.
The CPP, the WOTUS regulations, and the FLSA regulations are all currently being challenged in court on various grounds. The Trump administration can also refuse to defend these laws. But the lawsuits are unlikely to simply go away because interveners would probably step in to defend them. For example, states and local governments have already intervened to defend the Clean Power Plan, and the Texas AFL-CIO has sought to intervene to defend the FLSA overtime regulations.
Enter Justice Kennedy
Before President-elect Trump was elected, all three of the cases described above were likely headed to the Supreme Court. Despite his hostility towards them (and maybe even because of it), these regulations will probably still end up before the Supreme Court.
It is perhaps unfair to speculate how a Supreme Court Justice might look at these regulations (which are all being challenged on different legal grounds) based solely on whether that Justice is a conservative or a liberal. Nevertheless, these labels indicate general legal philosophies and leanings.
Conservative Justices – for a variety of reasons which may differ depending on the regulation – might generally be more likely to view these (and other regulations) with more hostility than liberal Justices. A conservative Justice is more likely to see any or all of these regulations as an attack on federalism or as an example of federal agency overreach. Regarding the CPP or the WOTUS rule in particular, a conservative Justice may see these measures as part of a pro-environment policy agenda rather than as a manifestation of clear law.
While we don’t know who President Trump will nominate to fill Justice Antonin Scalia’s vacancy, all signs point toward President Trump nominating (and the Senate ultimately confirming) a reliable conservative. But this nomination will not change the balance of the Supreme Court before Justice Scalia died; it would remain a 5-4 conservative Court with Justice Anthony Kennedy in the middle.
So, unless membership in the Supreme Court changes again soon, the fate of these regulations may lie in the hands of a person as puzzling, powerful, and unpredictable as Donald J. Trump: Justice Kennedy.
About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.