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Trump Administration has options – and challenges – for repealing Obama Administration rules

President-elect Trump has stated that one of his top priorities in the first 100 days of his presidency is to repeal a number of controversial regulations that were finalized during the Obama Administration. Among these regulations are several that significantly impact America’s counties, including the U.S. Environmental Protection Agency’s (EPA) rule on “Waters of the U.S.” (WOTUS), as well as rules relating to ozone, climate change and overtime pay.

Although the President-elect’s intent is straightforward, in reality, dismantling existing rules and regulations is challenging and fraught with difficulties. While regulations that have been finalized but not yet implemented by the outgoing administration– commonly known as “midnight rules” – might be somewhat easier for the new administration to nullify, finalized rules will prove tougher to unravel. To turn back finalized rules, the Trump Administration will have three options, each presenting a series of challenges.

First, the administration can leave the matter in the hands of the courts; second, the administration may ask Congress to take action on specific regulations; and third, the administration can use the existing regulatory process. Below is a detailed explanation of these options and their challenges.

Let the rules play out in the courts

The incoming administration’s first option is to leave the matter in the hands of the courts and hope the courts rule against Obama Administration regulations. Within the last several years, EPA’s finalized rules on WOTUS, ozone and the Clean Power Plan (CPP) have been challenged in the courts by a number of states, industry and environmental groups. The states and industry have typically argued that the final rules are too stringent, while environmental groups often claim that the rules do not go far enough to protect the environment.

While letting the courts assess and rule on controversial regulations in this manner might produce the results desired by the incoming administration, this tactic is often extremely time-consuming, and, even if the courts ultimately side with the Trump Administration, the rules in question might not be wholly dismantled. Below are some potential scenarios regarding how lawsuits on controversial regulations may play out:

  • If the rule is struck down by the district or appeals courts, the Trump Administration could simply refuse to continue to defend the case or appeal to a higher court. However, since other parties (e.g., environmental groups, states or industry groups) would be able to intervene to appeal a lower court’s ruling, it is likely that litigation would continue with or without the Trump Administration’s involvement.
  • If the rule is upheld by the lower courts or if the case has not been decided by the time President-elect Trump is sworn in, the administration could ask the courts for a “voluntary remand” of the rule back to the appropriate agency for reconsideration. Under a voluntary remand, the agency would be required to reassess and revise the rule through a public comment period. However, to request a voluntary remand, the administration must have a strong and legally defensible argument for reconsideration – otherwise the request is likely to be challenged in the courts. Even without a request from the administration, the court can instruct the agency to rewrite the rule.

An important caveat here is that all lower court decisions involving federal regulations are likely to ultimately be challenged before the Supreme Court, which has considered cases with only eight justices since Justice Antonin Scalia’s death in 2016. This has important implications for any controversial suits that may come before the Court before a replacement for Justice Scalia is nominated and confirmed – if the Justices split evenly on any case, the lower court’s ruling will stand.

Ask Congress to take action

The incoming administration’s second option would be to ask leaders in the U.S. House of Representatives and the U.S. Senate to pass legislation that would require agencies to repeal specific rules. This option, of course, will carry the same difficulties and challenges as any attempt to pass legislation in the U.S. Congress, including filibusters from Democratic lawmakers and potential policy disagreements within the Republican caucus. Nonetheless, some of the options Congress may use to nullify existing regulations include:

  • Passing a free-standing bill that withdraws the regulation and requires the agency to rewrite the rule. While this may be an ideal and straightforward scenario for the incoming administration, the Senate’s rules will make it difficult for the GOP – with its current 52-48 majority – to reach the 60 votes needed to bypass filibusters by Democratic lawmakers.
  • Employing the Congressional Review Act (CRA) to roll back rules with a simple majority of votes. While the CRA enables GOP leaders to bypass a potential Democratic filibuster, this option is only applicable to rules finalized in the last 60 legislative days of the 114th Congress, meaning rules finalized before May 30, 2016 could not be nullified in this way. CRA has only been used successfully once, to overturn a 2001 U.S. Department of Labor rule on ergonomics.
  • Repealing the provision of the federal law that instructs the agency to write or revise the rule is another option. However, for popular regulations like those related to the Clean Water Act and Clean Air Act, this option may be difficult to utilize, as both of these rules have broad congressional support and may be difficult to amend. Further, this option is also subject to filibuster by Democratic senators.
  • Inserting legislative riders into appropriations bills to prohibit the agency from using appropriations funding to develop, implement or enforce the rule would serve as another way to undercut a rule. This language would have to be carefully written to ensure that if the courts remand the rule, the agency would be able to work on new rules. Further, this option remains subject to Senate filibuster rules.

As such, despite their control of the White House and both chambers of Congress, the Republican party will likely need some Democratic support to achieve filibuster-proof vote counts on rules that they wish to repeal.

Address rules through the administrative process

Third, in addition to the courts and Congress, the Trump Administration has several administrative options to address controversial Obama Administration regulations, including:

  • The administration may use the Administrative Procedures Act (APA) to withdraw the rule. The APA is the U.S. federal statute that governs the way administrative agencies may propose and establish regulations. However, the APA lays out specific requirements for proposing or deleting rules that can prove complex and difficult to satisfy. For example, to repeal a rule through APA, a public comment process would need to be carried out, and the process would need be done deliberately and thoughtfully to prevent the courts from invaliding the rule. Additionally, the administration must provide a strong and legally defensible justification for withdrawing the rule through the APA, and this justification could be vulnerable to legal challenges if is controversial or not sufficiently supported by existing science.
  • The agency can choose to selectively enforce portions of the law by, for example, instituting a hiring freeze on enforcement agents or moving employees to other programs. However, this tactic is difficult to carry out since federal agencies typically have internal processes to ensure the agency follows the letter of the law.

Lastly, while President-elect Trump may also use Executive Orders to address controversial aspects of the Obama Administration’s policies, Executive Orders cannot be used to overturn regulations. That said, these orders can be used to undo Executive Orders of past presidents, or to change the scope of a regulation, as long as such a change does not violate existing law. As an example, President Obama issued Executive Order 13693 to instruct all federal agencies to consider the impact of greenhouse gas emissions on their operations. President-elect Trump could reverse this instruction through his own Executive Order.