Donald Trump will move swiftly to dismantle the web of regulations and executive orders that President Obama issued covering everything from the Internet to labor union elections. But Trump’s vow to reverse Obama’s legacy “boom, first day, first hour, first minute,” will quickly run into some peculiar dilemmas. Take the Clean Power Plan, a rule that would reshape the U.S. electric utility industry by forcing many coal-fired plants to shut down.
The U.S. Supreme Court halted the rule in February while a federal appeals court in Washington decides whether it exceeded the executive branch’s power. But if the D.C. Circuit, which held arguments in September, upholds the Clean Power Plan, the Trump administration will technically have won the case and can't appeal the decision to the Supreme Court. Its only alternatives are to change the rule, requiring a lengthy notice-and-comment process that will draw legal opposition from environmental groups, or convince Congress to pass a law against enforcing it.
“The problem with a rule is the Supreme Court says `You prevailed,’” said Thomas Lorenzen, a partner with Crowell & Moring in Washington and a former Justice Dept. lawyer in charge of environmental litigation. “And as a rule, you have the power to get rid of it.”
The Trump administration will face many similar dilemmas as it tries to unravel Obama’s legacy. Some of his executive orders – they run to 26 pages on the Whitehouse.gov website -- can be countermanded, including ones raising the minimum wage for federal contractors to $10 and the dozen orders he signed loosening immigration enforcement, which the Fifth Circuit Court of Appeals suspended and the Supreme Court declined to reinstate in a 4-4 deadlock this fall.
Trump will have a harder time with published rules and actions by independent agencies like the National Labor Relations Board, which have the effect of law after going through a lengthy administrative process. Obama’s NLRB has pushed through a number of pro-union decisions and is poised to upend franchise law in a pending case by holding McDonald’s Corp. liable for any labor-law violations by its independent franchisees. The board already issued a ruling declaring Browning-Ferris a “joint employer” of contract employees in its plants, destabilizing longstanding understanding of the law of contractors, as well as rulings on “quickie elections” for unions, requiring employers to allow union organizers access to their e-mail systems, and this year’s decision allowing graduate students to organize in old-fashioned industrial unions.
While Trump can fill two vacant seats at the NLRB and take majority control of the agency, its general counsel, Richard Griffin, former general counsel for the International Union of Operating Engineers, serves until the end of 2017. Most NLRB decisions stem from legal cases decided by an administrative law judge, so it takes another case to reverse them.
“You don’t walk in on Day One saying we’re firing everybody at the board” and change years of past rulings, said Michael Lotito, shareholder with the employment law firm Littler in San Francisco. “This is the most radical labor board in history, which has reversed more than 1,000 years of precedent.”
Given that the Obama administration has upturned so many precedents, Lotito said, Trump administration agencies can hardly be criticized if they do the same.
Trump’s victory also means administration lawyers likely will rely upon one of the tools most hated by conservative legal theorists, so-called “Chevron” and “Auer” deference courts give federal agencies for interpreting laws and their own regulations. Under these theories courts shouldn’t second-guess agency officials when they interpret ambiguous laws. The Obama administration has done plenty of that, sometimes flipping 180 degrees from longstanding interpretations of existing law. The Trump administration will likely make the same arguments in court when it flips some of those interpretations back.
“Unless the statute is clear on its face, the administration has lots of room to maneuver,” said Lorenzen.
Here are some of the prime targets of an incoming Trump administration:
Clean Power Plan: Obama administration lawyers pegged the entire reorganization of the electric-power grid to reduce greenhouse-gas emissions on a single section of the Clean Air Act, which arguable is contradicted by another section due to a legislative drafting error. If a Washington appeals court upholds the plan, the government technically will have won, meaning states suing to block the rule will have to appeal to the Supreme Court or Trump will have to convince the Republican-controlled Congress to pass a law reversing the plan.
Waters of the U.S.: The Environmental Protection Agency published a new rule dramatically extending the authority of the federal government over “navigable waters” to include millions of acres of land that drains into waters that conceivably connect to navigable waterways. The Sixth Circuit Court of Appeals is hearing a challenge to the rule, which would subject millions of farmers and landowners to Army Corps of Engineers jurisdiction for the first time. If the Obama administration wins, Trump will again technically be the winner and forced to take other actions to reverse the rule.
Overtime rule: 21 states have sued to block the Labor Dept.’s rule increasing the threshold for overtime pay to $913 a week or more than $47,000 a year. But the rule is scheduled to go into effect Dec. 1, leaving the incoming Trump administration with tough choices next year: Try and rescind the rule, meaning employers might tell millions of workers they’re cutting their pay, or modify it by eliminating automatic cost-of-living increases and perhaps passing a new law making it clear that overtime should be determined by job duties and not pay level. “The Obama administration was very clever designing the implementation plan for the overtime rule,” said Lotito. “There’s lots of opportunities going forward but not much that can be done about this Dec. 1 implementation date.”
“Persuader rule”: Lawyers protested this rule requiring employers to disclose what they pay outside law firms for advice on union-organizing drives, saying it violates the attorney-client privilege. In June, a federal judge in Texas issued a nationwide injunction blocking the rule, so the Trump administration can simply refuse to appeal it.
Open Internet: This rule subjecting Internet providers to Title II telephone regulation survived court review this summer, so it’s effectively the law. AT&T has appealed the decision to the Supreme Court. Meanwhile Trump can decline to enforce it vigorously, or convince Congress to pass a law rescinding the Title II part, which hangs upon a disputed Federal Communications Commission interpretation of a vague clause instructing the FCC to ensure the deployment of “advanced telecommunications capacity to all Americans” by “removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”
Methane rules: The Obama administration ordered steep cuts in methane emissions from oil and gas wells to comply with international greenhouse-gas agreements (methane is a far more powerful greenhouse gas than CO2). Since it’s a final rule, environmentalists can sue the government if it is not enforced, although the Trump administration has some discretion on who to go after and can negotiate lenient settlements of cases.
Consumer Financial Protection Bureau: A federal appeals court in Washington this year found this agency "unaccountable" and unconstitutional because of a feature liberal supporters like Sen. Elizabeth Warren celebrated: Its single executive was accountable to no one, including the president. The court excised that single provision from the law establishing the CFPB, granting President Trump the power to remove Director Richard Cordray and presumably put in someone who will dial back the agency's aggressive enforcement actions against lenders and credit card companies. Bad news for class-action lawyers who were granted a huge favor with new rules prohibiting class-action waivers in consumer financial contracts. Enforcement of that one might be spotty in a Trump administration.
