“Deconstructing” the Green State: The Administrative Presidency of Donald Trump

• In Event: Politics of Rulemaking in the Administration State

Abstract

Beginning with Ronald Reagan, republican presidents have succeeded in using the regulatory state as an extension of the White House policy establishment in the service of deregulatory agendas. The aggressive use of regulatory review and executive orders to guide federal agency actions resumed during Donald Trump’s single term in office, as political appointees took aim at the environment and natural resource policies opposed by his campaign donors. Unlike his predecessors, Trump’s deregulatory agenda went beyond repealing, delaying, and weakening federal environmental regulations. It included federal preemption of state-level environmental policies as well as well as situating “deregulation teams” within every agency, in a program of policy retrenchment known as “deconstructing the administrative state.” Most of the rollbacks were launched through presidential directives and rulemaking. With the exceptions of four Congressional Review Act resolutions, the administration neither required nor sought the assistance of the republican-controlled 115th Congress to pursue its environmental policy goals.

This study examines a dataset of proposed and final rules from the Department of Energy, the EPA, FWS, BLM, US Forest Service and NOAA, including 23 “midnight” regulations, to gauge the resilience of these initiatives. The future of these rules is now in question as the agencies are subject to new leaders and new presidential directives. Recent history suggests that policy changes achieved through administrative rulemaking are limited and provisional because agency rules are subject to litigation, recission by Congress, and the priorities of changing leadership.
Possible outcomes include judicial review, unilateral suspension, replacement with a different rule, strategic use of the solicitor general to settle lawsuits, and recission under the Congressional Review Act. Because the strategies behind each of these outcomes has a high opportunity cost, the expectation is most of the final rules will remain intact.

Author

• David M. Shafie, Chapman University