President-elect Trump’s hard-charging, results-oriented style will soon confront the reality of policy-making in the White House — a process that is often slow, frustrating and fraught with complications.
While Trump’s team has signaled that he plans to sign “four or five” high-priority executive orders on the first day of his presidency, much of his agenda will require regulatory reform or the cooperation of Congress. That means Trump’s ambitious proposals may have to wait months or even years to become reality as they get caught in the gears of government.
Christopher DeMuth, a Hudson Institute fellow who was known as President Reagan’s “deregulation czar” after heading up his task force on deregulation, said Trump faces an uphill battle when it comes to removing regulations already on the books.
“He’s clearly intent on making deep reforms to labor regulations and environmental regulations,” DeMuth said. “It’s very difficult to do.”
Because Trump cannot simply remove any existing regulations, DeMuth said, he must replace each Obama administration regulation he hopes to repeal with a new one that explains why the old is inadequate. Then his agencies must endure the lengthy rulemaking process, which includes weeks of public comments and potential court challenges.
“There’s a whole statutory process for developing or redeveloping regulations,” said Gregory Koger, a political science professor. “It could take months, but more likely years, to undo regulations that have been put in place.”
That reality is at odds with Trump’s promise to start gutting regulations in his first 100 days.
“On regulation, I will formulate a rule which says that for every one new regulation two old regulations must be eliminated,” Trump said in a November video address.
Koger noted that proposal, while great campaign rhetoric, makes little sense because the elimination of each regulation requires a new regulation to negate its effectiveness.
The only exception occurs when Congress decides to take up new regulations under the Congressional Review Act. By using that legislation, lawmakers can overrule a new regulation within 60 legislative days of its creation, and send a resolution of disapproval to the president’s desk.
Although the Congressional Review Act has only ever been used at the outset of President George W. Bush’s first term in 2001, Congress could lean on that legislation to roll back every undesirable rule the Obama administration enacted over the past six months.
Obama’s more than $6 billion in “midnight regulations,” or rules rushed through at the end of a president’s term, are vulnerable to removal by Congress.
For many other policies, however, Trump must look to Capitol Hill for help. Already, his push to repeal and replace the Affordable Care Act has hit snags, as various Republicans in the House and Senate have contradicted each other or put forward competing ideas for an Obamacare alternative.
And although his relationship with House Speaker Paul Ryan has drastically improved since its low point during the presidential campaign, Trump has offered little praise for Senate Majority Leader Mitch McConnell and may bristle when the upper chamber moves with its characteristic sluggishness to pass elements of his agenda.
On Obamacare, Koger said Trump can’t use his executive authority to change the healthcare system. But he could use it to undermine Obamacare while congressional Republicans attempt to highlight its failures during their replacement fight.
“If the goal is just to embarrass the Affordable Care Act then they could, but that of course would cause a great disruption in the healthcare market and in people’s lives,” Koger said. “There’s probably a great deal that could be done using administrative action that could undermine the Affordable Care Act… in the absence of legislation that actually implements a new system.”
For example, Trump’s Department of Health and Human Services could deny services to the healthcare.gov website where people sign up for insurance plans in an effort to limit the number of new enrollees during the negotiation process.
But it would take an act of Congress to eliminate the website and the plans people can buy on it.
Other aspects of Trump’s policy vision, such as his 35 percent tariff on imported goods from U.S. companies that operate overseas or his massive infrastructure spending package, could meet resistance in Congress from fiscally conservative members of his own party.
Still, Trump is expected to use his executive authority aggressively in the early days of his administration to strip away some of Obama’s orders. Koger said two areas where Trump can operate largely on his own are immigration and foreign policy.
“A lot of the change that’s happened in immigration policy has been through executive actions in the Obama administration, and that can be reversed by executive action,” Koger said, noting the exception would be Trump’s plan to build a border wall, which would require appropriations from Congress.
And when it comes to foreign policy, Koger said Trump has plenty of room to make his own decisions.
“Over the last 100 years, Congress has taken a very subordinate role in foreign policy, and so the president has a lot of discretion to remake foreign policy,” Koger said. “The laws that have been written usually give the president a great deal of discretion about how they’re implemented.”
