Chuck Kennedy



Obama Legacy Under Threat from Trump

A New York Times piece assessing President Trump’s first 100 days in office claimed that, “he has been more aggressive than any other president in using his authority to undo his predecessor’s legacy, particularly on trade, business regulation and the environment.” Is this true? Here’s my 115-day assessment:

This is a hard question to answer. It’s insufficient to count up the quantity of actions. And it’s much harder to measure (or even know) the extent to which Trump’s intentions are being implemented throughout the government (which lacks a significant number of political appointees that are critical to the development of this type of policy). I’ve also tried to focus the discussion below on clear instances of “undoing” a previous policy, rather than examine all changes in policy direction, but this is a hard line to draw.

Party changes are where we’re likely to see a significant number of policy reversals, however measured. As I previously wrote, Obama moved quickly to reverse a number of Bush-era policies. Some policies, like the Mexico City policy banning abortion services by US-funded foreign NGOs, are reversed every time the White House changes party.

If Trump has been unusually active in rolling back Obama-era policies, he’s able to be, in part, because Obama was unusually active in using his administrative powers to create policy.

As I’ve noted before, Obama left a lot of policy vulnerable to tampering by a future president. Policies based entirely in statutory interpretation or executive branch policy guidance are fragile. Already the Trump administration has revoked joint Department of Justice and Education guidance on transgender student bathroom access, issued new sentencing instructions for prosecutors, reversing Attorney General Eric Holder’s guidance to avoid charging non-violent drug offenders with charges carrying mandatory minimums, and cleared the way for previously blocked natural gas pipelines.

Trump’s actions are not unusual for a new president. All presidents seek to impose their vision for how the executive branch should interpret law and exercise its discretion. Clinton did so through expanding presidential control of regulatory agendas and ownership of regulatory product (practices studied and cheered by then legal scholar Elena Kagan). Bush made unprecedented use of signing statements to challenge provisions of bills even as he signed them (a practice criticized but often repeated by his successor). The distinction in the current case is the extent to which these now-reversed policies often formed the core of Obama’s actions in areas like immigration, the environment, and civil rights.

(Pete Souza)

Relative to passing legislation on the same subjects — a relative impossibility for much of Obama’s tenure — these were narrow accomplishments and, therefore, narrow reversals. Although not costless politically (revoking the bathroom guidance pitted Attorney General Jeff Sessions against Secretary of Education Betsy DeVos, who opposed the change), these policies are significantly easier to reverse than policies requiring new regulations or legislation.

With the help of a Republican Congress, Trump has made unprecedented use of the Congressional Review Act to cancel rules issued in the waning days of the Obama administration. He’s signed 13 Joint Resolutions of Disapproval under the act, which had previously been used only once before, in 2001. He’s used a variety of other tools to withdraw from the TPP, signal his intent to dismantle the Clean Power Plan, review the status of monuments like Bears Ears, and more.

The common thread here is the recency of the actions Trump is reversing. Most of the rules canceled by the CRA have not yet come into effect. Both the Clean Power Plan and Obama’s bathroom guidance were stalled in the courts. Trump left the unfinished TPP but not NAFTA, NATO, or the Paris climate agreement (which he’s delayed consideration of). His order reviewing national monuments questions the broader use of the Antiquities Act to preserve land but only names Bears Ears, the most recent use of the act, by name.

By focusing on programs that are not yet in place, Trump does little to change the status quo and attracts correspondingly little opposition, relative to what he would if challenging more entrenched programs. Programs that are equally vulnerable to presidential modification, like DACA—justified only by enforcement discretion — have been left alone, despite Trump’s promise to crack down on illegal immigration and end the program. The as-yet-unfulfilled repeal of the Affordable Care Act — the centerpiece of Obama’s legacy — illustrates the much greater difficulty of reversing actions that have been in place longer and for which changing the status quo would generate real losses. Even members of Congress who oppose the program must face constituents who would lose coverage if it were repealed.

While thirteen uses of the CRA is a lot by historical standards, the Obama administration issued about 20,000 rules in all, most of which were finalized too early to be revoked under the CRA. Moreover, some attempts to revoke rules haven’t been successful. Last Wednesday, the Senate voted against rolling back a methane emissions rule. Opportunity and political support will characterize the extent to which Trump reverses Obama’s policies.

By the numbers, Trump’s record isn’t dissimilar to previous presidents.

Trump has issued directives that revoke 13 Obama executive orders and memoranda, but 6 of these revoked directives were either clerical or replaced with an equivalent substitute. The seven remaining directives dealt with the Mexico City policy, labor rules for government contractors, and climate change. Obama, in his first year in office, revoked 8 Bush executive orders (and amended 8 others) on topics from abortion to regulation to military interrogations. The directives that both presidents revoked were the type that typically flip when parties change: a mix of long contested issues like abortion and guidance for the executive branch on broad topics like regulation. Trump’s overall pace of issuing directives is high, but similar to Obama’s. You can see a day by day comparison here.

Trump’s words often speak louder than his actions.

(Samira Bouaou/The Epoch Times)

On the more challenging set of issues still before him, Trump has taken an approach that is more bluster than substance. His record here is still developing, but his claims outpace his success. This too is not new, of course, as Obama’s early promise to close Guantanamo illustrates. Yet Trump’s approach seems even louder, particularly in his use of executive orders for symbolic effect.

Trump signed an executive order on his first day in office to minimize the effect of the Affordable Care Act. This did nothing, as his goal could really only be accomplished by legislation. He similarly called for the construction of a border wall by executive order a few days later, which can’t be built without legislation to fund it and which Congress has refused to authorize. Indeed, many of Trump’s executive orders simply signal the administration’s intent to act: to repeal the Clean Power Plan, reduce regulatory burdens, review proclamations, or even comply with existing law. These actions do not require executive orders, nor do the orders accomplish any policy change. While the orders are designed to signal intent or resolve, their caveat-couched instructions to act “to the extent permitted by law” and “as appropriate,” belie the constrained space in which the president is acting.

For example, the order to undo the Clean Power Plan asks the EPA administrator, rather meekly, to: “if appropriate…as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising, or rescinding those rules.”

The process of revising the regulations will take over a year. And despite Trump’s instructions, the EPA is statutorily required to regulate carbon emissions. The existing regulations will need to be revised rather than revoked outright. Any changes will inevitably go to the courts, where the current rules already are.

This agenda will be hard to implement without staff.

Trump has yet to nominate anyone for 456 key positions that require Senate confirmation. In the Department of Education, 13 of the 15 key positions have no nominee, including the deputy secretary. In the Department of Justice, only 2 of 28 key positions are filled, with 21 remaining positions lacking a nominee. Staff are critical to the development and implementation of policy. Although there are acting career bureaucrats in many of these positions, the delays these vacancies cause are real. The Department of Labor, which had a secretary confirmed only at the end of April and has yet to fill any of its other key positions, has had to ask for extensions 3 times to conduct its review of overtime rules currently in court. This suggests that dismissing members of the EPA’s review board will be an unsuccessful strategy as well. You can’t “deconstruct” the state by simply leaving it unstaffed. Firing FBI Director Comey will further hamper the progress on Trump’s agenda, both in the mechanical sense of the Senate devoting time to yet another confirmation and because of the political cost of such an unpopular action.

All new presidents face what Richard Neustadt termed the “Hazards of Transition”: hubris, ignorance, and haste. Trump has certainly fallen victim to all three, but they are a challenge to all incoming presidents. Neustadt attributes Kennedy’s Bay of Pigs failure to the same hazards, and one could attribute the same causes to countless early mistakes by incoming presidents. I’ve already noted Obama’s errors in attempting to close Guantanamo and try detainees in civilian court.

As Trump moves from the low hanging fruit to more challenging and permanent policy change, it remains to be seen whether he learns from his earliest errors. Trump has made clear his goal to reverse much of Obama’s legacy, but on the most complex issues — health care, the environment, immigration — this will require both acts of Congress and careful implementation in the executive branch. It will take more than 100 days to see the result.