Presidential Transitions and the Hyperactive Administrative State

President-Elect Donald Trump.  Photo: Gage Skidmore

President-Elect Donald Trump.  Photo: Gage Skidmore

A couple years ago, in response to Congressional obstructionism frustrating President Obama's legislative agenda, he said the following: "I’ve got a pen and I’ve got a phone.  And I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward."  What the President meant by that was that, even without Congressional support, the federal executive's administrative agencies are so broad in scope and powers that the President can still use administrative rules and regulations to govern the country.  This approach was the source of the Clean Power Plan, for example, which itself was a reflection of the administration's commitment to the Paris Climate Treaty it had negotiated with the international community.

At the end of a President's term, and especially when the president-elect is of a different party from the incumbent, there is a sense that there is little work left to be done, or little that can be done.  The "lame-duck" President merely waits out the 6 weeks or so until the inauguration.  Since the rise of the administrative state in the twentieth century, however, that is anything but accurate.  In fact, the past few presidential transitions have seen Presidents continue to create new rules and regulations, often up until their last day in office.  That's because administrative agency rule-making, while technically reversible by the next administration, is in reality difficult to overturn.  Even when rules are reversed or abolished, the process requires considerable human and political investments to pull off.  

A prime example of this was President Clinton's Roadless Rule.  The Roadless Rule prevented logging, mining, drilling, and road-building across millions of acres of undeveloped national forest lands.  The Rule was published a week before President Bush took office.  The Bush administration delayed its enactment, and were not in support of enforcing it.  Overturning the rule would have required a lengthy administrative rule-making process, however, something the administration did not have the stomach for at the time.  The fight then moved to the federal courts, state governments, and the US Congress, as forces battled to preserve, modify, or abolish the Rule.  Eventually efforts to overturn the rule died in front of the DC District Court in 2013, twelve years after the Rule's enactment.  While not all administrative rules and regulations experience such a colorful history, the Roadless Rule demonstrates that a President's powers to set policy for the country do not end on election day.

Next semester I will be teaching Administrative Law.  From an educational point of view, it will be one of the most exciting times in recent history to teach this course.  The Obama administration will be announcing and promulgating hundreds of new rules up until the inauguration, and soon thereafter the Trump administration will do its best to undo or minimize the impact of those new rules.  Some of that has already begun.  A couple weeks ago the Department of the Interior announced a 5-year plan for offshore drilling in the Arctic, prohibiting oil and gas development entirely in most areas.  The Trump administration, which appears to be more friendly towards oil and gas interests, could overturn this plan only after extensive environmental studies and consultations.  

Also of interest will be the Obama administration's handling of the Dakota Access Pipeline, and the Trump administration's approach to that pipeline as well as Keystone XL.  The DAPL permits are still withdrawn, and could be granted or revoked by the current administration.  Or, the Obama administration could kick the can down the road and let the Trump administration handle it (Trump has declared his support for construction of the pipeline).  If it wanted to, the Trump administration could revisit Keystone XL as well.  The original project was denied, but a slightly modified project could be submitted again by TransCanada.  It would take some time to go through the administrative review process, of course, but it would not be surprising if Keystone XL is back on the table next year.  There will surely be more administrative agency drama to come in the next several weeks and months.