New Jersey Lawyer News
To constituents, executive actions may seem like simple maneuvers—quick fixes to a discordant Supreme Court or a disagreeing Congress. But to those who have held Presidential office, executive actions have shown themselves to be much more complex. Each comes with its own set of statutorily or judicially imposed restraints. Some actions are subject to modification or even revocation while others must comply with certain mandated procedures; all actions, though, fall subject to a lack of permanence and are often withdrawn just as swiftly as they were first put into place.
Most executive actions can be broken down into three basic categories:
- Executive orders, which are written directions issued by the incumbent President that govern actions of executive branch officials as well as government agencies
- Discretionary agency directions and guidance documents, which are agency policy or interpretive pronouncements that do not have the force nor the effect of law
- Agency rules, which are issued pursuant to delegated authority from Congress and do have the force and effect of law
In the case of an Executive Order, the sitting President can immediately revoke or alter any given executive order issued by a predecessor. Although executive orders are generally issued quickly and do not require much compliance nor participation with other parties, they are fragile and often do not stand the test of time across administrations.
There are some good examples, though, of executive orders that have lasted many decades. One of the most hotly contended and rigorously amended is 1961’s Executive Order 10925, issued by President John F. Kennedy. Better known today as “Affirmative Action,” the order included a provision that government contractors “take affirmative action to ensure that applicant are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.”
Come January 20, 2017, the President-elect will be afforded the power to overturn significant pieces of domestic policy put in place by President Obama. Among these executive orders are EPA regulations on greenhouse gas emissions and the Iran Sanctions, which are presumed to be some of the first to go.
More contentious domestic policies have been implemented as Discretionary Agency Directives and Guidance Documents, which are frequently used to set regulatory policy. Such directives must include agency policy statements, interpretive rules, guidance documents, letters and press releases, but unlike executive orders, they need not follow the rulemaking procedures enumerated by the Administrative Procedure Act (APA), meaning they may bypass publication in the Federal Register.
One of the agency directives susceptible to being revoked by the new administration in January and most important to undocumented individuals is the Deferred Action for Childhood Arrivals (DACA) immigration program (as well as DHS’ expansion of the program, the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
Where the President-elect will face the most hardship, though, in overturning the incumbent’s executive actions are in cases of Agency Rules and Regulations, which must comply with specific mandated procedures. Agency rulemaking must comply with the Administrative Procedure Act’s (APA) notice and comment process, which requires an agency to provide the public with notice of a proposed rule-making (which, according to the APA, can mean formulating, amending or repealing a rule) and a consequential opportunity to comment on that rule. Whatever the proposed rule-making, agencies are typically required to engage in the process.
If challenged, the repeal of a rule is subjected to the same standard of review as new rules, namely reviewing any potential arbitrary reasoning for repeal that may result from an abuse of discretion or proves itself in discordance with the law. In congruence with this sentiment, the Supreme Court has established that “an agency changing its course by rescinding a rule is required to supply a reasoned analysis for the change.” This “reasoned analysis” must be reflected in evidence included within the rule-making record.
On the campaign trail, Trump suggested the elimination of as many as 70 percent of federal regulations. Among some of the first agency rules that the Trump administration may target for repeal are the EPA’s Clean Power Plan, the EPA and Army Corps of Engineers’ Clean Water Rule, the Interior Department’s Bureau of Land Management’s Fracking Rule, and the Dodd-Frank Wall Street Reform and Consumer Protection Act.
The President-elect’s ability to compel agency action will strongly depend on whether that agency is a traditional executive branch agency or an independent agency. Although the President’s scope of authority over such independent agencies is still hazy, the President is generally seen as lacking the authority necessary to encourage such agencies to repeal or revoke a discretionary agency direction or a guidance document. President-elect Trump may be able to follow through on his promise of overturning regulations if he is successful in implementing new agency leaders who will work to actualize his proposed policies.
Those in the immigration field are hoping that the president-elect takes a humanitarian approach and preserves DACA.