Unraveling Regulations: The President and Congress Are Targeting Regulations, but the Supreme Court May Have the Final Word

By Soronen, Lisa | State Legislatures, March 2017 | Go to article overview

Unraveling Regulations: The President and Congress Are Targeting Regulations, but the Supreme Court May Have the Final Word


Soronen, Lisa, State Legislatures


President Donald Trump wasted no time in demonstrating his desire to rid the nation of what he views as unnecessary federal regulations.

On Inauguration Day, his chief of staff, Reince Priebus, sent a memo to all executive agency and department heads. It required them, as previous administrations have done, to postpone all regulations that had not yet gone into effect for at least 60 days until the president's appointees could review them. It also told them to withdraw any new regulations not yet in the Federal Register.

Then, 10 days into his term, Trump issued an executive order saying that for every new regulation issued, at least two existing regulations must be identified for elimination. That, however, may be easier said than done.

The Administrative Procedures Act requires that elimination of rules not be arbitrary and makes repealing federal regulations as challenging as adopting them. The whole process could take more than a year--and much longer for the most complicated or controversial regulations.

Two regulations on the chopping block are of particular interest to state governments.

The first is the Clean Power Plan, President Obama's signature climate change measure created under the Clean Air Act and requiring power plants to reduce carbon dioxide emissions. The other involves the "waters of the United States" definition in the Clean Water Act clarifying the federal government's authority to regulate certain bodies of water.

The Menu of Options

The Trump administration has several ways to reverse these and other regulations. The most effective options, however, are also the most difficult to achieve.

Perhaps the cleanest way to undo final regulations is for Congress to rewrite or eliminate the statutory language being interpreted in them. The final rule regarding the jurisdiction of the Clean Water Act, for example, defines eight categories of water over which the federal government has authority. Congress could simply redefine those categories if Senate Democrats go along with the changes. That's a big if, of course, and it's unlikely to happen if they view the effort as weakening environmental protections in the final rule.

Another option for the administration is to have the federal agencies rewrite the final regulations. But that would require the agencies to propose new regulations, which could take a long time. The Clean Power Plan regulations, for example, fill more than 300 pages. Any rules to replace them would be subject to a public comment period of either 60 or 120 days. The agency would then have to consider thousands of comments before issuing any new final rules, which most certainly would then be challenged in court by supporters of the current rules.

A third option the president has is to not enforce certain rules. He can achieve this by cutting funding to the agencies responsible for enforcing the rules or by instructing them to make particular regulations a low priority.

Agencies also have the option of issuing different interpretations of regulations than were originally intended. Any new interpretation could face legal challenges for being arbitrary, however, and could be overturned with the stroke of a pen by the next administration.

The Trump administration can also refuse to defend these laws, but the lawsuits are unlikely to simply go away. Others will step in to defend them.

Supreme Court Holds the Future

If regulations are eliminated, it will not likely be the result of the new president's efforts alone. Even before Trump was elected, many rules were being challenged on a variety of legal grounds. It looks like that will continue to be the case, with many of these regulations, or the repeal of them, ending up in court. And for some, that means being reviewed by the U.S. Supreme Court, which ultimately holds the most power in deciding the future of various federal rules and regulations. …

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