Last week, we established that Trump can’t abolish the EPA, or any other department or regulatory agency without Congressional support. Even if Congress and Trump do abolish an agency or department, the laws the organization enforces still must be enforced.
What about those laws? Can Trump abolish a law, or refuse to enforce it?
Only Congress Can Make or Break a Law
The fundamental component underlying the separation of powers is that only Congress can make, or break, a law. Unfortunately, we will be seeing more of the latter than the former in the upcoming Congressional session.
Trump promised to toss out the Affordable Care Act (ACA), and he has a willing Republican majority in both the House and Senate. However, though Congress has the power, and Trump has the pen, tossing out a law is easier said the done. I think the Washington Post best summarized this effort:
While it’s pretty much a given that the Affordable Care Act won’t survive a Trump presidency and Republican Congress in its current form, there are sweeping implications of reversing a law that has reached in so many ways into our health care system. The government has never undone a major benefits program after it has taken effect — and neither the incoming administration nor GOP lawmakers know exactly how they’ll replace it.
Forget the bombastic Congressional members and the talking heads on the news: “breaking” the ACA will be a major undertaking, and only a fool thinks there won’t be problems associated with undoing this legislation.
At last estimate, the Congressional Budget Office stated 22 million people will lose health care coverage if the ACA is tossed out. I think that’s conservative. With the lack of a comprehensive plan in place, and a focus on doing something quickly, I suspect that Congressional actions on the ACA will actually cause some healthcare providers (including Jared Kushner’s brothers’ company) to completely fail, the entire individual health care system to collapse, and 24 to 30 million people will lose health care coverage.
Other than being devastating to a large number of Americans, It’s difficult to determine the overall negative impact of the destruction of the Affordable Care Act. It’s strictly a guessing game because neither Trump nor Congressional Republicans have provided specifics in how they’re going “repeal and replace” Obamacare.
What about other laws? Such as the Clean Water Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, the laws behind Medicare, and so on?
Again, only Congress can make, break, or modify a law. But Trump sure can bend it.
The Newly Finalized Methane Waste Rule is Toast
Laws are enforced by regulations defined by the agency that enforces it. The key to Trump’s influence is how rigidly enforcement of a law is defined within the bill that created it, and how new a regulation is.
Environmentally, the two most vulnerable regulations are the EPA’s Clean Power Plan (CPP), and the Department of Interior’s recently released Methane and Waste Prevention Rule.
The Methane waste rule is particularly vulnerable because of timing. The rule was just finalized, which means it falls within the 60 days where the regulation can be overturned by Congress via the Congressional Review Act (CRA).
The CRA provides a 60-day window when a new regulation can be overturned by Congress using expedited processing. What this means is that a filibuster can’t be used, the disapproval can be passed by a simple majority in the House and Senate.
However, a President can veto a resolution of disapproval. Since regulations typically have Presidential support, the President can and will veto a resolution of disapproval. the CRA has only been used successfully once in the past. It was successfully used (PDF) against an Occupation Safety and Health Administration (OSHA) rule related to ergonomic workplace injuries. The rule was passed at the end of President Bill Clinton’s tenure, but within the 60-day window of the Republican-controlled Congress under a newly elected George W. Bush.
In other words, in exactly the same circumstances that now face the new Methane rule: finalized under Obama, challenged under Trump.
Bluntly, unless enough pressure can be brought against Republican Senators to not disapprove the rule, it’s toast. This means that oil and gas productions on public land would no longer have to take special measures to prevent methane leaks—both wasting natural gas, as well as adding to existing climate change conditions.
What about other newly finalized rules and regulations?
Any that have been finalized after May 30, 2016 are vulnerable to disapproval under the CRA. The reason for the date is outlined in a PDF provided by the Congressional Research Service. Since the CRA will figure heavily in the first actions Congress takes in 2017, the same group has also put out a CRA FAQ. Sadly, there’s little we can do to stop these resolutions of disapproval because of the expedited processing.
The Vulnerability of the CPP
The CRA can’t be used against the CPP, which was finalized in August of 2015. However, the CPP is vulnerable in several other ways.
The Supreme Court blocked the EPA from enforcing the CPP while a challenge against it is making their way through court. Currently the case is in the Court of Appeals for the D.C. Circuit Court.
Even before the Appeals court decides, the EPA, under Trump, could ask that the court remand the rule back to the EPA for modification and further comment. This happened with a previous court cases related to an EPA mercury rule. The court, itself, can remand the rule back to the EPA for further work. I find both options to be possible, but unlikely.
If the rule was remanded, the EPA would then need to amend the rule and re-submit it for public commentary—a process that can take over two years. While this is happening, though, environmental groups can sue the government for pulling the rule. If the rule is weakened, the same groups (and states) can sue the government for not adhering to the requirements established in previous SCOTUS court decisions and the Clean Air Act.
The Appeals Court has heard oral arguments and is in the decision-making phase in the case. However it rules, the case is likely headed to the Supreme Court. At that time, the US Justice Department could conceivably choose not to defend the rule, though I find this unlikely even in a Trump Administration. If the Justice Department doesn’t mount a defense of the rule, several intervening organizations could mount their own independent defense.
The court case for the rule will likely end up in front of SCOTUS. We’ll have to assume that by that time Trump will have appointed a new Supreme Court Justice, and one who is not sympathetic towards the environment or to regulation. Even then, when it comes to cases of this nature, there’s no guarantee how SCOTUS will decide. They could reject it outright, or they could send it back to the EPA for modification, and the whole process starts over again. They can even rule on the side of the EPA, it has happened even when Scalia was alive.
The takeaway from all of this is that trying to amend, delay, or remove existing regulations doesn’t occur in a vacuum. There are existing procedures in place that must be followed, regardless of who is President. In addition, both states and organizations can monitor government actions, lawyers at the ready to file a lawsuit if the Executive Branch of our government backslides into bad behavior.
The Citizen Suit
Earlier, I mentioned about groups suing the federal government if it doesn’t enforce the CPP. They can do so under an important provision built into many laws knows as the citizen suit provision.
Trump can’t just arbitrarily demand that agencies not enforce rules, at least not all rules. Many are based on laws that have a citizen suit provision allowing individuals and organizations to sue the government for not enforcing the law.
There is a citizen suit provision in the Endangered Species Act. It’s been used many times to force the government into protecting endangered species when the government drags its feet. The same provision exists in other important environmental laws, such as the Clean Water Act and the Clean Air Act. The latter means that if the CPP does survive the court challenge, Trump could order his EPA head not to enforce it, but his administration will face lawsuits.
Still, these types of lawsuits aren’t easy to fight in court and don’t always win. But they do give us a weapon. We’re not entirely helpless.
Trump could then attempt to modify existing regulations, in order to weaken them and undermine their usefulness. However, modifying an existing regulation isn’t trivial. It takes time and because of overall government regulations, the Administration has to prove that the agency modified the regulation in order to better enforce the law. Regulations that have been in place for years are, frankly, almost untouchable by a new Administration. The only way to stop all of this would be to actually modify the law, itself. Doing so requires Congressional action.
This leads us back to Trump, and what he can do. The greatest damage Trump can do is sign his name.
Donald Trump is no Guardian at the Gate
This year, Republicans have added several anti-environmental riders to various budget bills. For instance, one rider would remove gray wolves from Endangered Species Act protection in the Great Lakes and Wyoming areas.
Removing the wolves from ESA protection isn’t based on a scientific understanding of wolves or an objective analysis of the impact of implementation of such a rider. The rider has been added for the convenience of sportsmen and ranchers, who could care less if wolves are hunted to extinction in the United States.
Another attempt to add a rider to delist a species is Rep. Rob Bishop’s (R-Utah) never-ending attempt to add a rider against protecting sage grouse onto the defense budget bills. As the Pentagon has noted, sage grouse really aren’t a threat to our military readiness.
The Republican-controlled Congress (most likely) won’t toss out the Clean Water Act, the Clean Air Act, the Endangered Species Act, or other long-established environmentally important law. But it will chip away at them, preferably under the cover of darkness by inserting riders such as these.
An Obama Administration would reject these riders. We can’t count on the same Guardian at the Gate behavior from Trump. We will need to be both vigilant and vocal, in Congress and out. We need to stop these riders before they end up on Trump’s desk. He can’t sign a document he doesn’t receive.
Bad Boy and His Bad Buds
A Trump Administration can adversely impact regulations in one last major way: by appointing agency and department leaders who are hostile to the actions of the organization.
Example: Trump has appointed Senator Jefferson Beauregard Sessions III to be Attorney General. Years ago, Sessions was denied a federal judgeship because of accusations of racism. Sessions also led the fight against appointing Justice Maria Sotomayer to the Supreme Court. He’s gone after black civil rights workers and is vehemently against immigration in any form.
How can I put it tactfully? Jeff Sessions as Attorney General does not inspire confidence. I won’t even get into the appointment of Michael Flynn as National Security Adviser, or Mike Pompeo to the CIA.
We have history to show us how much damage inappropriate agency and department appointees can be. I’ll cover Presidential appointments and their impact on the agencies they run on the next installment of “Can Trump Do That”.
Story first appeared in Crooks & Liars.
Photo by Gage Skidmore CC BY-SA 2.0