News
December 1, 2016

Presidential Powers: Avenues Available to President Trump to Change Law and Policy

Advisory

New presidents bring new agendas, which can include rescinding or modifying the policies of prior presidents. President-elect Donald J. Trump is no different. The "100-day plan" he released during his campaign included ambitious goals, such as simplifying the federal tax code and federal regulations, withdrawing from various international agreements, and rolling back environmental regulations.1 His most recent 100-day plan is more modest, but still reflects some of his campaign promises. He proposes, among other things, to take executive action to withdraw from the Transpacific Partnership (TPP) trade deal, enhance enforcement of immigration laws, and cancel certain environmental restrictions related to energy production.2

Of course, what any president is able to accomplish is constrained by law, and what can be achieved may be different from what was promised. We provide below an overview of key avenues where the incoming president can unilaterally pursue his agenda, and the obstacles that might interfere with the implementation of a president's promises. While a president can always work with Congress to effect change, particularly where Congress is controlled by the same party as the president, we focus below on the prerogatives at the president’s sole disposal.

United States Constitution Article II: The President's Powers

The United States Constitution vests the president with "the executive power" and the duty to ensure that federal laws are "faithfully executed." The Constitution offers no more detail on the scope of these powers, although it does enumerate other executive powers—to be commander in chief and, with the advice and consent of the Senate, to make treaties and appoint federal officials. Taken together, these powers allow a president to pursue a broad array of policy goals with or without the assistance of Congress.

Executive Actions

The most accessible avenue for a president to achieve policy goals is also the least durable. Executive Orders (EOs), presidential national security directives, presidential memoranda, and presidential proclamations are all various executive actions that a president can take to direct or "guide" federal officials and agencies. Where these actions derive their authority from Article II of the Constitution or authority delegated to the president by Congress, such as an EO that interprets a statute in order to "execute" that statute, the actions may have the force of law. Actions that are untethered to constitutional or statutory authority may be considered only "guidance." A president can undertake these actions without the formalities required to create statutes or regulations,3 but the trade-off for such expediency is that any future president is free to revoke these actions. In similar fashion, policy guidance issued or authorized by prior presidents can be overturned by a new president. Where the scope of executive authority is in question, the president can turn to the DOJ's Office of Legal Counsel (OLC) for formal and informal legal advice. While OLC interpretations are considered binding on executive branch agencies, ultimate decision-making authority rests with the president, who can reject the recommendations of OLC as a subordinate component of the executive branch.4

Administering the Laws

Another avenue President-elect Trump could pursue would be selective enforcement of the laws. In 2012, President Obama used executive actions to institute the Deferred Action for Childhood Arrivals program (DACA), which deferred immigration action on certain categories of undocumented "young people." In 2014, President Obama expanded DACA through further executive action to defer immigration action in additional cases.5 In sum, these executive actions shifted the focus of immigration law enforcement away from particular populations.  

President-elect Trump could rescind these executive actions and other non-enforcement guidance at will.6 At the same time, he could use the DACA approach to marginalize Obama-era laws by de-prioritizing their enforcement, either through an EO or through more informal means. For example, President Trump could impose hiring freezes on the enforcement arms of agencies such as the Consumer Finance Protection Bureau (CFPB), the EPA, or the Department of Education, and shift more personnel resources within the Department of Homeland Security to border enforcement and immigration control. For those agencies that "regulate by enforcement," such as the CFPB or the SEC, a change in enforcement priorities, penalties and remedies sought, and the statement of findings of what constitutes a violation, can rapidly reconfigure the practical implication and meaning of existing laws and regulations.

Agency Rules and Regulations

President Trump will have significant authority to affect the work of executive branch regulatory agencies. By filling existing and new vacancies in agency leadership with the consent of the Senate, the new president can assert philosophical control over the actions of these agencies. Independent agencies are theoretically more insulated from political persuasion emanating from the president. The leadership of these agencies, usually boards or commissions, are removable only for cause. Moreover, these agencies generally have some statutory requirement for a bipartisan leadership, meaning that a president cannot appoint only those of his own political party to lead the agency.

Regardless of whether an agency is executive or independent, a president's ability to change existing rules and regulations is not unfettered. While President-elect Trump has indicated that he would institute a "requirement that for every new federal regulation, two existing regulations must be eliminated," a President Trump will find that overturning existing rules and regulations requires more than a simple decree. This will be especially true with respect to rules made by independent agencies. Given that those agencies are more insulated from presidential control, it is possible that President Trump will not even be able to direct or persuade these agencies to undertake the avenues we outline below, at least not early on in his tenure as president when he lacks sufficient political control over the leadership of these agencies.

Repealing Final Rules

Agency rules, commonly referred to as regulations, must generally be formulated in accordance with the Administrative Procedure Act (APA). Amending or repealing a rule likewise requires following the APA's procedures. An agency is not free to repeal or replace a rule at the mere behest of a new administration.

The APA process is long and complicated. In order to overturn existing rules, the APA requires an agency to undertake a "notice and comment" process, which involves publishing the proposed repeal in the Federal Register and soliciting comments from "interested persons." The agency must then generally consider and respond to the comments. The bulk of agency rulemakings (or repeals of rules) must comply with this process, which generally takes over a year. Agency rule repeals must not be "arbitrary" or "capricious." These are terms of art, used by the APA, that have been interpreted to require an agency to "display awareness that it is changing position," and "show that there are good reasons for the new policy."7 These standards may limit an incoming president's ability to negate the regulatory legacies of his predecessors.

The Congressional Review Act (CRA) may offer another approach to repealing undesired rules. The CRA requires agencies to submit final rules to Congress and authorizes Congress to overturn these rules within a certain period of time without the Senate being able to use its filibuster powers. The president then must agree to the action. For President-elect Trump's purposes, only rules submitted after May 30, 2016, are subject to the CRA. The CRA has been used only once to overturn a rule, but the fact that President-elect Trump will govern with a Republican majority in Congress suggests that the CRA is an option for repealing some of the most recent regulations promulgated by President Obama. Regulations eligible to be overturned by the incoming Congress include new requirements for nutrition and supplement labeling for packaged foods, new rules to reduce emissions from new and existing landfills, and additional requirements for offshore drilling in the Arctic Shelf.

The Trump Administration could also refuse to defend laws and regulations that are currently subject to litigation. For example, President Obama's Clean Power Plan, which created new regulations based on the Clean Air Act, is pending before the en banc D.C. Circuit. A Trump EPA could decline to further defend the plan, leaving its fate uncertain.

Reinterpreting Rules

Reinterpretation of existing rules could in some instances serve as an easier alternative to repealing them. Agency interpretations and reinterpretations of rules are not subject to the APA's notice and comment process. While these interpretations do not carry the force of law, they can be used to limit the scope or effect of a rule, because agency interpretations command "Auer deference." This means that a court should defer to agency interpretations of their own rules, notwithstanding the fact that these interpretations are not legally binding.8 As a result, the Trump Administration can limit the scope and reach of certain existing rules, without formally repealing them, by reinterpreting them to meet an altered policy agenda. There are limits to this approach, however; the government will leave itself open to a challenge that a rule reinterpretation is arbitrary or capricious if the reinterpretation lacks foundation.

Relatedly, agency guidance or statements of policy, which are meant to inform the public or regulated entities of important information, such as an agency's enforcement priorities, are also exempt from the APA's notice and comment process. Like agency interpretations, guidance and policy documents formally lack the force of law, but they do affect the behavior of regulated entities.9 Thus, changes in guidance or policy documents can have a profound effect and can be relatively easy to implement through agency action alone. It also should be noted that agency interpretations, guidance documents, and policy statements, though exempt from the APA's notice and comment process, are not necessarily exempt from the CRA: the CRA's definition of a rule that must be submitted to Congress is broader than the APA's definition of a rule that is subject to the notice and comment process.

Pending Rules

A president has significant authority to affect rules that have yet to be finalized. In order for a rule to be finalized and have the force of law, it must be adopted in final form by the leadership of the agency in a formal meeting and published in the Federal Register. If rules have been prepared but not yet adopted, the new agency leadership can choose not to adopt them in final form, or can re-propose them in modified form for further public comment and subsequent action. If a rule has been adopted but not yet published, the president might direct an agency not to send the rule to the Federal Register for publication, forever stalling it within the agency. In the past, some presidents have issued broad EOs creating "moratoriums" that hold all pending rules from publication. For rules that have been published, but with which compliance is not yet mandatory due to a deferred effective or compliance date, the new agency leadership can hold a formal meeting to defer the effective or compliance date for a period of time while a comprehensive amendment or repeal is considered.

Other Options

If the facts permit, an incoming president could also try to move forward quickly to promulgate new rules by using interim final rulemaking or direct final rulemaking. The former occurs where an agency finds "good cause" to issue a final rule without going through APA procedures. The latter occurs where an agency sends a rule to be published without first going through APA procedures, because the agency believes that the rule is so uncontroversial as to warrant this abbreviated process. Both forms of rulemaking are subject to notice and comment after publication as a post-hoc check. Though these two forms of rulemaking are more limited, they still offer a possible avenue for an incoming president to pursue.

International Agreements and International Obligations

President-elect Trump has signaled his intent to withdraw from international trade agreements such as NAFTA and TPP. What does it mean to withdraw? The answer can be complicated. An executed treaty or other international agreement has both international and domestic dimensions. An agreement binds the United States as a matter of international law when the United States becomes a party under the agreement's terms. However, under United States law, certain agreements are "non-self-executing," meaning they lack domestic force unless implemented through legislation that sets out domestic laws related to the agreement's obligations.10 Like most trade agreements, NAFTA and TPP are non-self-executing congressional-executive agreements.11 They therefore must be approved and implemented into United States law through legislation passed by a majority vote of both Houses. NAFTA was approved by Congress and implemented into domestic law through the NAFTA Implementation Act.12 TPP, while signed by the United States, has not yet been approved or implemented by Congress.

Should the United States wish to withdraw from an agreement in force like NAFTA, it must follow the procedures set forth in the text of the agreement to remove the United States' international obligations. However, it is not clear who in the United States government has the power to take this step. The courts have not ruled on whether a president can withdraw from a congressional-executive agreement, as opposed to needing congressional approval to do so.13 The Executive Branch traditionally has asserted that the president has the power to do this as an exercise of the executive's foreign policy power. However, given the joint constitutional authority the Congress and the president share in matters of international commerce, this is particularly complex. Accordingly, if President-elect Trump unilaterally withdrew from NAFTA, this could spawn domestic litigation challenging that act. It is also not clear whether withdrawing from NAFTA would affect the NAFTA Implementation Act.14 The United States has signed TPP, but has not yet taken all the steps TPP requires to become a party to the agreement. Accordingly, stepping back from this agreement does not raise the same legal complexities as NAFTA withdrawal would.15

***

At noontime on January 20, 2017, President-elect Donald J. Trump will become President Donald J. Trump. He will then have at his disposal "[t]he executive power," and a variety of tools to effectuate that power into agents of change for both law and policy. While the amount of authority he will wield is considerable, that authority is finite and bounded. He may have to shift priorities based on his ability to get things done, as well as adjust goals and benchmarks because of political and institutional constraints. Even where he has clear executive authority to act, litigation by affected parties that seek a stay of executive actions could interfere with his agenda. At the end of the day, separation of powers means that even with the awesome powers vested in the President of the United States, the president may need to call on the additional resources of Congress, the private sector, or international partners to accomplish his goals.

  1. Here Is What Donald Trump Wants To Do In His First 100 Days.

  2. Donald Trump outlines policy plan for first 100 days.

  3. EOs must be published in the Federal Register, but are not subject to notice and comment.

  4. Principles to Guide the Office of Legal Counsel, December 21, 2004, a 2004 document, written by 19 former OLC attorneys, outlines various OLC "Principles."

  5. The DACA expansion was challenged in the courts by those arguing that President Obama was being derelict in his constitutional duty to "take care that the laws be faithfully executed." The president's supporters argued that the president was properly exercising prosecutorial discretion. Ultimately, the DACA expansion was struck down on non-constitutional grounds, but the original DACA remains in place.

  6. For example, in 2013, the Department of Justice issued guidance on enforcement of federal marijuana laws, directing federal prosecutors not to use their resources to prosecute marijuana businesses that complied with state laws permitting such activities.

  7. FCC. v. Fox Television Stations, Inc., 556 U.S. 502 (2009).

  8. Auer v. Robbins, 519 U.S. 452 (1997).

  9. A law review article from the 1990s collected numerous instances of purportedly nonbinding guidance or policy documents being used to real-world effect, such as denying applications or permits, or sanctioning persons or entities for violations of these policies. See Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like – Should Federal Agencies Use Them to Bind the Public?, 41 Duke L.J. 1311 (1992).

  10. Under Article II of the Constitution, a treaty must be approved by two-thirds vote of the Senate. Other international agreements—known as "executive agreements"—can be self-executing, requiring no approval by Congress. Still other agreements may be non-self-executing, which then requires congressional action to create domestic legal obligations.

  11. A "treaty" has different meanings under international and domestic law. NAFTA and TPP are treaties for international law purposes, but are congressional-executive agreements for domestic law purposes.

  12. Govtrack.us - Tracking the US Congress: H.R. 3450 (103rd): North American Free Trade Agreement Implementation Act.

  13. Similarly, courts have not fully addressed whether a president can unilaterally withdraw from a ratified treaty. The Constitution is silent on such withdrawal.

  14. The NAFTA Implementation Act does not contain language explaining the impact on this law if the United States withdraws from NAFTA. This raises the possibility that even if NAFTA is no longer in force, the NAFTA Implementation Act might still be operative.

  15. To become a party to TPP, a signatory country must notify the TPP administrative authorities that the "applicable (domestic) legal procedures" have been completed. For the United States, this would mean passage of TPP implementing legislation by our Congress, which is not likely in the foreseeable future.

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