A story in The Hill points to what several of us have been highlighting for a couple of weeks. The strategy the Obama administration is pursuing in his waning days is to take actions that will restrict the ability of Trump’s administration to change policy directions and will bog him down in legal fights that will prepare the ground for what the Democrats hope will be a comeback in 2018.
President Obama has taken a flurry of unilateral actions in the waning days of his tenure that appear designed to box in President-elect Donald Trump.
Obama has also permanently banned oil and gas drilling large swaths of the Atlantic and Arctic oceans, closed off 1.6 million acres of Western land to development and scrapped the last vestiges of a registration system used largely on Muslim immigrants.
Undoing Obama’s national monument designations — the latest protecting two massive areas in the American West — could prove a heavy lift as well, likely requiring a prolonged legal battle.
No president has ever reversed a predecessor’s actions to create a monument under the Antiquities Act.
The Obama administration and environmental groups argue it can’t legally be done, though some Republican lawmakers argue otherwise.
“In terms of whether it can be overturned, no,” said Christie Goldfuss, managing director of the White House Council on Environmental Quality. “The Antiquities Act gives the president the authority to create monuments, but does not provide explicit authority to undo them.”
Meanwhile, by dismantling the dormant National Security Entry-Exit Registration System, Obama could slow any possible effort Trump makes to set up a registry for Muslims in the U.S. The system could have served as a foundation for a new Trump program.
And there are rumors that the Obama administration is planning to launch a veritable barrage of federal lawsuits against US businesses to attempt to either lock in Obama policies or force Trump to pull the lawsuits and give the Democrats a 2018 campaign issue that will resonate with that same demographic that believes Russia actually had an influence on how Americans voted.
Some of these actions are symbolic. For instance, the “Muslim registry” can be reinstituted just as easily as Obama undid it. The software exists. The staffing exists. All that is missing is the directive from above. A shrewd Trump administration would use the last minute lawsuits as a way to create a firewall of unfavorable legal decisions that would bind future Democrat administrations.
The real danger, however, is in the regulatory arena. Here it will be difficult for Trump to revoke new regulations without going through the same lengthy process used to develop them. In the case of environmental regulations, there is an army of leftwing, enviro-whacko litigators out there just waiting to sue the Trump EPA to force it to enforce Obama’s regulations. And you know what? They will win in court because the litigators that should be defending the Trump administration are actually in bed, in some cases literally, with the enviro-whackos bringing the lawsuits.
Supporters of Trump and industries that have opposed Obama’s regulatory actions say turning back the clock is the most important thing the president-elect can do to help businesses succeed.
But it won’t be easy to undo many of the energy and climate regulations that Obama has put in place.
Under federal law, reversing major regulations requires a time-consuming process that can drag on for months and even years. And even after new rules are issued, they can be challenged in court — something environmental groups are already vowing to do.
The Obama administration, meanwhile, has in recent weeks added to Trump’s list of targets by issuing a new coal mining regulation and offshore drilling bans in the Arctic and Atlantic oceans.
Obama also created controversial national monuments in Utah and Nevada that Republicans are pushing Trump to repeal, something Obama says is not in Trump’s power to do.
“Some actions they will be able to do in relatively short order. Other major rules will take time to meet the burden of regulatory process,” said Scott Segal, a lobbyist at Bracewell who represents numerous energy companies.
But repealing these regulations is only the first step. The real objective should be to amend the Clean Air Act and Clean Water Act to require any regulation produced in regards to those laws receive positive Congressional assent. Non-controversial regulations will breeze through Congress. Regulations classifying your backyard mud puddles as “waters of the United States,” not so much.
The federal regulatory environment is complex as one would expect in any society that is inching its way towards a police state one good intention at a time. There would be no more fitting first act of the new Congress than passing a bill repealing a decade of Obama regulations, because Trump can undo some of what Obama did but unless Congress acts, too, this is just another edition of Failure Theater.