Will Trump Stand in Way of Regulatory Reform?

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Chris Opfer

Nov. 15 — Republican lawmakers want to limit the White House’s regulatory authority in the next year, but to do so, they’ll have to convince the man they just helped elect president to curb his own power.

“The test for the Trump administration will be one of restraint,” Jonathan Turley, a lawyer who recently represented House Republicans in a lawsuit challenging the Obama administration’s implementation of the Affordable Care Act, told Bloomberg BNA. “It may seem counterintuitive, but a president who works with the approval of Congress has greater power.”

GOP members are pushing a package of bills in response to the wide range of regulations and executive orders that the Obama administration has issued without first going through Congress. That includes the new overtime rule, expanded disclosure requirements for retirement investment brokers and updated union representation election standards.

Any measure that rolls back White House authority could be a tough sell for President-elect Donald Trump. The New York real estate mogul painted himself as a decisive businessman on the campaign trail and has promised to bring strong, singular leadership to the nation’s Capitol.

That’s not to mention that Trump himself is also looking to cut back on government power in Washington. He’s already pledged to “drain the swamp” in Congress by imposing term limits on lawmakers.

Slowing the Regulatory Stream

Regulatory reform is a centerpiece of House Speaker Paul Ryan’s (R-Wis.) “better way” legislative agenda.

The House earlier this year passed bills that would scrap the deference courts give to agencies in reviewing regulations ( H.R. 4768) and require Congress to approve all rules with an economic impact of at least $100 million before they take effect ( H.R. 427). They’re also slated to take up a separate measure ( H.R. 5982) that would make it easier for lawmakers to block “midnight” regulations published near the end of a president’s term.

Ryan told reporters the day after the election that GOP control of Congress and the White House makes those goals more attainable.

“This means that we can lift the oppressive weight of the regulatory state,” Ryan said. “We can restore the Constitution.”

Ryan and other critics have said that President Barack Obama regularly acts beyond his executive authority by pushing regulations and executive orders that have the force of law without going through the legislature. That includes by moving to protect millions of undocumented immigrants from deportation, an initiative that’s been on hold since February, when a federal judge blocked the program.

Trump himself has repeatedly promised to slash environmental, energy and other regulatory red tape once he enters the Oval Office. His selection of Reince Priebus for chief of staff has been interpreted as a signal that he wants to work with Congress, but it’s not clear whether he’s ready to go as far as trimming his own rulemaking power.

“I have no idea what President-elect Trump thinks of REINS,” Ryan Young, a fellow at the limited government think tank Competitive Enterprise Institute, told Bloomberg BNA. CEI Nov. 15 released a report urging Congress to pass the Regulations from the Executive in Need of Scrutiny Act, which would slow regulations with larger economic impacts.

Chance for Democrats

Congress has only limited tools in their arsenal for turning back regulations that they don’t like. Lawmakers can pass legislation—subject to presidential approval—rolling back the regulation or they can seek to block it via the Congressional Review Act, which also requires a two-thirds vote in both chambers to overcome a veto.

That’s why Republicans want to force future presidents to jump through certain hoops before they can use the power of the pen to advance programs they otherwise can’t get approved by Congress. GOP lawmakers are hoping Trump will play along, on the assumption that he’ll be able to move White House legislative priorities through the Republican-controlled Congress with relative ease.

“We will have to see if President-elect Trump will make the same mistake that President Obama made, but there’s no reason for him to do it,” Turley told Bloomberg BNA. “He can actually accomplish all of his objectives without circumventing Congress.”

That’s why Young and others are also holding out hope that Obama and congressional Democrats change their minds and help move regulatory reforms like the REINS Act. It may be one of their best chances to counteract the Trump White House in the next four years.

“If the purpose of the bill is to limit executive power, they may decide now is a good time to do that,” Young said.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law