President Obama made it easy for President-Elect Donald Trump to undo his "fundamental transformation" of the United States by the way he achieved it–not by working with the Congress to make changes but by the unprecedentedly frequent reliance upon executive orders. The Wall Street Journal explains in an editorial this morning:
President Obama spent his final six years in office—and especially the last two—governing largely by executive fiat. He issued executive orders, and his administrative state issued tens of thousands of pages of new regulations that took on the force of law. He called it rule by pen and phone.
This infuriated millions of Americans and contributed to Donald Trump’s victory, and one irony is that this also means that Mr. Obama’s policy legacy is less durable. Mr. Trump will now have the chance to reverse these orders and regulations often without new legislation.
I suppose those of us who would like to have much of President Obama's legacy reversed, a tip of the hat to the Founders is in order. They made it more difficult to enact permanent changes through fiat than the adjunct constitutional law professor from Chicago realized. Before you get complacent: it was a close call. A different outcome to the election just-ended would have given the Obama transformation time to take root and become permanent.
The Wall Street Journal offers three tips on how to reverse Obama's executive orders. However, I just want to quote this passage to give us an idea of the mindboggling degree to which he used this form of governing (I might even say ruling):
Wayne Crews of the Competitive Enterprise Institute counts more than 250 executive orders signed by President Obama, plus more than 230 “executive memoranda.” These did everything from creating a new investment vehicle called MyRA, which seeks to encourage new savers to invest in government debt, to directing federal agencies to demand new data to investigate pay disparity by race and sex at government contractors. The Trump transition should review every one so the boss can rescind them if he wishes.
A related category are orders issued by federal agencies without a formal federal rule-making. Mr. Obama’s regulators made an unprecedented practice of issuing “guidance” that allowed agencies to duck rule-making while still forcing targets to comply—or risk enforcement action.
A classic of this genre is the Education Department’s rewrite of Title IX telling universities how they must handle accusations of sexual assault. Other examples run from auto lending to drug discovery to housing rentals. The President’s order legalizing four million illegal immigrants that is currently tied up in court can also be dropped at the stroke of a pen.
Easy to reverse, The Journal points out that Mr. Trump can merely order new cabinet secretaries to void these guidelines, which were not enacted through Congress. He can also order federal agencies to halt work on regulations that are being developed and due to be published in the Federal Register.
Another tool to reverse the Obama transformation comes from the era of Trump supporter Newt Gingrich's speakership. The Congressional Review Act gives Congress the right to kill last-minute regulations now winding through Congress. Legislators can reconsider any of these from the last sixty days in January without the threat of a filibuster.
The Congressional Review Act can be put to good use:
Republicans can now use this mechanism to kill the Treasury Department’s misguided effort to punish businesses that Treasury thinks might move their headquarters overseas. Other potential targets include a pending IRS rule to raise estate-tax collections and a Commodity Futures Trading Commission proposal to strip regulated companies of their due-process rights to challenge federal demands for information.
Obama regulations that were put through a formal rule-making process will be the most difficult to repeal. The Journal explians:
Ground zero is the Environmental Protection Agency. William Beach of George Mason University’s Mercatus Center says the EPA is America’s most expensive regulator and its Clean Power Plan alone will cost the economy more than $7 billion a year. The power rule is being challenged in federal court as unconstitutional, and Mr. Trump’s Justice Department can tell the court that it is changing its position on the law’s legality. This is what the Obama Administration did with Bill Clinton’s Defense of Marriage Act.
Other Obama rules, such as the EPA’s much-loathed Waters of the United States regulation and the FCC’s Title II Internet takeover, may require new rule-makings to reverse. These new rules probably will be challenged in court, which could delay implementation. But this is all the more reason to start immediately.
If a President Trump eliminates President Obama's harmful regulations, the economy will get a boost. A Mercatus study suggests that, if the U.S. had maintained the level of regulation of 1980, our economy would be $4 trillion larger. That translates into something like $13,000 per capita.
Because of the arrogant way he governed, President Obama has afforded his successor an astonishing opportunity to undo his work with–well–his pen and phone.