By Lisa Soronen
President-elect Donald Trump has stated repeatedly that one of the goals of his new administration is to get rid of federal regulations.
Despite the fact that the new administration has a menu of options to kill final federal regulations, the most effective options are likely the most difficult to achieve.
This post uses as examples three of the most important regulations to state and local government—all of which are on the chopping block:
- The Clean Power Plan (CPP) (President Obama’s signature climate change measure).
- The regulations defining “waters of the United States” (WOTUS) (a significant term in the Clean Water Act defining the federal government’s jurisdiction to regulate water).
- The Fair Labor Standards Act (FLSA) overtime regulations (extending overtime pay to 4 million workers).
Perhaps the cleanest way to undo final regulations is to rewrite or eliminate the statutory language being interpreted in the regulation. For example, the WOTUS final rule includes eight categories of jurisdictional waters. Congress could simply rewrite the Clean Water Act to define WOTUS differently from the final regulations. But getting such a change through Congress would probably be impossible as Senate Democrats would certainly filibuster any change they saw as offering less environmental protection than the final regulations.
The Trump administration could also instruct agencies to rewrite regulations. But a number of challenges arise with this option.
First, the agency would have to come up with new proposed regulations. Depending on the regulation, this might take a lot of time. Take the Clean Power Plan regulations, which are more than 300 pages long. Once new regulations are proposed, they are subject to a public comment period of either 60 or 120 days. The agency then must consider hundreds or thousands of comments before issuing final rules. When this process is complete, the new regulations would almost certainly be subject to a court challenge. Changes to agency rules must be nonarbitrary. Supporters of any of the three regulations discussed in this posting would likely be willing to sue.
Another option to deal with disfavored regulations is to not enforce them by giving agencies inadequate funding to engage in rigorous enforcement or instructing agencies to make enforcement of particular regulations a low priority. This strategy would be more effective for some regulations than others. For example, if President Trump instructed the Department of Labor to ignore employees being classified as “white collar” when they should not be per the FLSA, employees could pursue lawsuits against their employers for this violation without Department of Labor involvement.
Agencies also have the option of issuing interpretations of regulations that can take regulations in a different direction than originally intended. This strategy will not work well for dismantling seismic regulations like the Clean Power Plan or very simple, straightforward regulations like the FLSA overtime rules. Also, these interpretations can be subject to court challenge as arbitrary and can be overturned with the stroke of a pen by the next administration.
The CPP, the WOTUS regulations and the FLSA regulations are all currently being challenged in court on various grounds. The Trump administration can refuse to defend these laws. But the lawsuits are unlikely to simply go away because interveners will likely step in and defend them. For example, states and local governments have already intervened to defend the Clean Power Plan and the Texas AFL-CIO has sought to intervene to defend the FLSA overtime regulations.
All this to say, if any or all of these regulations go, it will not likely be the result of the direct efforts of the new president.
Instead, it is likely to done by the U.S. Supreme Court, which is the subject of my next post, if it is to be done at all.
Lisa Soronen is executive director of the State and Local Legal Center and is a frequent contributor to the NCSL Blog.