Why Republicans Can't Stop Obama's Executive Actions on Day One

By Sam Baker

August 17, 2015, 10:06 AM ET - GovExec.com

The 2016 GOP contenders have made some pretty ambitious and far-reaching plans for their first day in office. Rick Perry said he'd show up on Day One with "a bottle of White-Out … to get started on all those executive orders that Mr. Obama has put his name to." Ted Cruz cast the net wide, pledging to use part of his first day in office to "rescind every illegal and unconstitutional action taken by Barack Obama."

Carly Fiorina was a little more specific—she said she would "begin by undoing a whole set of things that President Obama has done, whether it is illegal amnesty or this latest round of EPA regulations."

But—even setting aside the fact that there are only 24 hours in Day One and that new presidents don't get the keys until noon—quickly undoing a predecessor's legacy is easier said than done.

Take those EPA regulations, for starters. There's no question Republicans hate them. They will be challenged in the courts—maybe even successfully. But it's extremely difficult for any new administration to put any of its predecessor's finalized regulations on the chopping block.

"Assuming you really want to change the policies, that's going to be hard to do by changing a regulation," said Cary Coglianese, a law professor at the University of Pennsylvania who leads a program focused on regulation.

The Environmental Protection Agency finalized its regulations implementing Obama's clean-energy plan earlier this month, after collecting public comments and making revisions for more than a year. To rescind those regulations, a new president would have to start the whole process all over again—taking the time to write a proposed rule, then gathering public feedback, and eventually finalizing a new and contradictory policy. It's a long road and a hard tactic to justify, regulatory experts said.

"Just the change of administration itself is not a sufficient reason to change a regulation," Coglianese said.

The same limitations would apply to most of Obamacare. Most of the law has been implemented, so there's not much a new president could freeze. And to undo what has already been done would require the next administration to reopen a whole host of rules—then commit at least a year to a fight over Obama's health care agenda, rather than the new president's.

Political will is always a factor as new administrations decide which of their predecessors' actions they want to reverse, experts said, even in cases when the process itself wouldn't be as difficult as reopening a regulation.

Susan Dudley, who led the White House's regulatory-review office during the George W. Bush administration and now teaches at George Washington University, said the next president's chief of staff will probably issue a memo on Day One freezing regulations that are already in the pipeline. It's a chance for the new administration to apply its policy priorities to the first batch of rules that will be issued on its watch.

There are still changes a new president could make while that review is under way, Dudley noted. Rescinding an executive order, for example, is as easy as signing a new one. Theoretically, that would allow a Republican president to easily undo a slew of Obama's orders—raising the minimum wage for federal contractors, extending new protections to gay employees, etc.

But experts said it's not very common to see big policy reversals early in an administration. Recent presidents might pick one or two things to quickly reverse or reopen, they said, but they have generally preferred to use their early political capital on nominations and legislation.

If the next president does want to pick a few spots to quickly and unilaterally roll back Obama's policies, immigration might be the easiest target. Obama's deferred-deportation program wasn't even an executive order, but rather an "executive action"—a directive about how immigration officials should prioritize their resources. Issuing a new directive would fall squarely within the new president's authority and would barely require any formal action.

"Things that are being done as policy initiatives are easier to reverse," said Ron White, the director of regulatory policy at the Center for Effective Government.

And just as Obama exercised "enforcement discretion" to shape immigration policy, a Republican administration could adopt its own version of discretion to slow-walk policies that are too big to change outright. The next EPA administrator, for example, could simply decide that it's not a high priority to finish implementing Obama's Clean Power Plan.

"You could see, for example, them saying, 'We're going to give states an extension of deadlines to come into compliance.' That would be easy to do," Coglianese said.

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