ILMA Compoundings February 2017 - 34

COUNSEL COMPOUND

The State of the Obama
Administrative State
By Jeff Leiter

A

s I write this column, President-elect
Donald Trump continues to
build his administration, while
the Obama White House is making a
final push to issue as many new regulations and executive actions it can before
Inauguration Day on Jan. 20. Despite
Republican warnings that they intend to
reverse a number of Obama administration rules, President Barack Obama and
his team reason that, by issuing more
regulations, they will force the Trump
administration to select those worth the
time and effort of reversing.
It is not uncommon for an outgoing administration to issue a flurry of significant
regulations in its final months in office. By
way of comparison, Bill Clinton promulgated 361 "economically significant"
regulations (those with over $100 million
in annual cost) during his two terms,
with 41 of those rules issued in the last
four months of his presidency. George W.
Bush issued 358 economically significant
regulations, with 48 coming in his last
four months in office. While I do not have
a total yet for Barack Obama's final four
months, his administration has published
557 economically significant regulations
through Nov. 15, 2016.
So, what do I see as the reaction to the
slew of new Obama administration regulations? Congressional Republicans surely
will try to use a Newt Gingrich-era law
- the Congressional Review Act (CRA)
- to nullify recent rules finalized by the
Obama administration. Under the CRA,
if the regulations were finalized within 60
"legislative" days of the end of either the
House or Senate's sessions, then the new

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FEBRUARY 2017

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Congress could potentially reverse a regulation if Trump agrees. The Congressional
Research Service says the CRA could apply
to any Obama administration regulations
published after May 30, 2016.
GOP staff for every Senate committee
have been working to identify to those
rules under its jurisdiction that might be
nullified under the CRA. Because a CRA
resolution of disapproval can take up to 10
hours of Senate floor time, and because the
Senate must do other priority work, such as
confirming Trump's key political nominees,
Congress may be able to overturn maybe up
to seven of Obama's last regulations.
Obama, citing an obstructionist Congress, kept the regulatory spigot open by
issuing executive orders and presidential
memoranda. However, what he created
by the pen can be taken away by the pen.
Trump can revoke any of these presidential documents, and Congress can enact
legislation revoking them, too.
The courts, particularly in recent
months, have provided a significant check
on executive branch overregulation. The
nationwide stay of the Department of
Labor's overtime rule is one example.
However, it is expected that Trump will
have a profound effect through his filling
of the vacancy on the U.S. Supreme Court
created by the death of Justice Antonin
Scalia, along with the possibility of filling
one or two additional seats during his
presidency. With a conservative majority of
5-4 on the Court, it is likely that the judiciary will continue to reign in the federal
rulemaking machine.
An interesting issue is whether the
Supreme Court will reverse or modify

its 1984 decision in Chevron v. Natural
Resources Defense Council. This decision
created what is known as "Chevron deference." This doctrine tells a court reviewing
an agency's regulation to determine first
"whether Congress has directly spoken
to the precise question at issue," and if
Congress has spoken, then the court "must
give effect to the unambiguously expressed
intent of Congress." However, if Congress
was silent or ambiguous on the matter,
then the court should uphold the agency's
regulatory interpretation as long as it is a
reasonable or permissible reading of the
statute.
Justices have suggested in recent cases
that the Supreme Court should reconsider
when and how much deference is owed
to executive branch agencies because of
the inconsistent application of Chevron
deference by the lower courts - that
is, whether the courts should exercise
independent judgment instead of simply
accepting an agency's "reasonable" interpretation of the law. In addition, there
are broader concerns about the judiciary's
constitutional duty to check on abuses by
the political branches in appropriate "cases
or controversies."
Elections do have consequences, and we
will see how far Trump, the Republican
Congress and a newly constituted Supreme
Court will go in undoing Obama's regulatory legacy.

Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.
http://www.ILMA.ORG
ILMA Compoundings February 2017

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