Obama’s Legacy: Here’s A Raft Of Executive Actions Trump May Target

It’s president Barack Obama’s last week. Is the American left ready to consider reining in executive power yet?

Coming to terms with the bipartisan stake in not tolerating unilateral federal agency action is one basis for common ground between Republicans and Democrats when it comes to draining the swamp after the inauguration of Donald Trump.

Election year 2016 was no time for Obama to pursue a legislative agenda for Congress to ignore, thus his “We Can’t Wait” campaign and the touting of executive action on gun control, Syrian refugees, closing Guantanamo, global warming, income inequality and other issues.

And as the year progressed, we saw a rash of new agency regulations.

Despite a letter warning against last minute regulation from House leadership, it’s been like a swarm of hornets.

Obama’s intended legacy–that of implementing the progressive agenda of more federal power, the rule of unelected experts, and middle-class dependency on the state–presumably depended upon a Clinton victory. But after Mr. Trump’s inauguration, we’ll find out.

Obama calculates, very likely correctly, that many of his initiatives will stick, in the same way Obamacare may get tweaked and renamed rather than repealed.

If executive action is sticky, will Democrats remain OK with the pen and phone, or will they rediscover the separation of powers? Will they be inclined to work with the Republican majority on partial restoration of the Constitution’s checks and balances, as promised in Speaker Paul Ryan’s A Better Way?

When 2016 ended, what I jokingly call the “Unconstitutionality Index” stood at 18: Congress passed 211 laws in calendar year 2016 (my preliminary count), but agencies issued 3,853 rules and regulations. The Federal Register containing all these rules was an astounding 97,110 pages, over 15,000 pages higher than the prior record. White House-reviewed cost-benefit analysis happens for fewer than two dozen rules annually.

For rules rushed through in the latter part of 2016 and early 2017, Congress has the ability to reject them via the Congressional Review Act if the Senate goes along with a bulk strategy. But I sense cold feet on that (sadly, “Obamacare” could come to mean “to take care that Obama’s executive actions remain”).

Yet the problem of executive branch overreach is considerably worse than giving costly, rushed, and unnecessary formal rules a pass during the most opportune time in history to eliminate them.

While long-standing and not unique to Obama, alternative means of “regulating” such as executive orders, memoranda, agency “guidance,” notices, and other regulatory dark matter remain under-appreciated by Congress. Trump has made a point of rescinding Obama’s executive actions, so we’ll look at some of those here.

Executive Orders:

For starters consider Obama’s executive orders. Those over immigration and over Obamacare’s implementation have been the most controversial, but here I want to look elsewhere.

Most executive orders are not regulatory. But when they are, the complexity of overturning them grows as Washington administers more private, local or state concerns, all without Congress passing a law. President Obama has issued executive orders on (for example) a minimum wage for federal contractors, a Non-Retaliation for Disclosure of Compensation Information decree, an order on paid sick leave for federal contractors, and controversial orders on cybersecurity information sharing and sanctions on individuals allegedly engaged in malicious cyber activity. There is even an order to better regulate us with behavioral science; government as helicopter parent, one might say.

Notable recently was Obama’s regulatory pro-antitrust “Steps to Increase Competition and Better Inform Consumers and Workers to Support Continued Growth of the American Economy.” This action proposed interventionist policies and attempted to cast most blame for anti-competitive business practices on private actors like the telecommunications sector, rather than the regulatory state’s overreach, cronyism, public/private partnerships and government favors.

On the environmental side, we have“Safeguarding the Nation from the Impacts of Invasive Species”; a “Planning for Federal Sustainability in the Next Decade” directive to federal agencies to reduce greenhouse gas emissions by more than a third; and controversial proclamations designating numerous national monuments.

As of today, President Obama has issued 292 executive orders, fewer actually than Bush or Clinton. While observers of executive action point to executive orders, these are not the source of most major decrees. Instead, unilateral memoranda, agency guidance and other dark matter dominate.

Presidential Memoranda:

Presidential memoranda may or may not be published in the Federal Register. It can be tricky to count them. President Obama issued 255 memoranda to date according to the Federal Register, with two days left. That easily outpaces George W. Bush’s 131, and swamps Bill Clinton’s 14. Our table nearby depicts the Federal Register count as well as the Obama White House press office roundup.

YEAR    

Federal Register Database

White House Tally
2000

13

  

2001

12

  

2002

10

  

2003

14

  

2004

21

  

2005

23

  

2006

 18  

2007

 16  

2008

15

  

2009

 38 68

2010

 42 70

2011

19

 85

2012

3

 85

2013

 32 52

2014

 25 45

2015

 31 73

2016

36  

 135

2017

 0 25
TOTAL 397 638

(Figures updated at www.tenthousandcommandments.com. Sources: Author search on FederalRegister.gov Advanced Search function; Presidential Documents; White House Press Office.)

Like executive orders, many executive memoranda are not regulatory, dealing with international relations and national security matters. But many certainly govern and “hereby direct” the federal chain of command to expand state power by such moves and creating a new financial investment instrument (Retirement Savings Security, 02/04/2014), and reorienting rights regarding work hours, without any legislation from Congress.

If certain steps are of vital national importance, then Congress should pass legislation. Recent executive memoranda, many with implications for employers and economic activity, and sometimes controversial, have included:

” Environmental Policy

Social Policy

Security/Foreign Policy

Labor Policy

Economic Policy

The number of annual memoranda exceeds the handful of rules with Office of Management and Budget-reviewed cost-benefit analyses.

Now: much of the talk this week will be of Obama’s legacy. What we have covered here are just certain unilateral presidential proclamations, of the sort Trump and Congress have, presumably, promised to review.

Stepping back, below the level of the president himself, the much bigger picture reveals thousands of agency sub-regulatory decrees like guidance documents, memoranda and notices that go well beyond the 3,000-plus “ordinary” but formalized rules we’ve noted.

Those will be a topic for another time, but examples include the Labor Department’s “Administrative Interpretations” on franchising and on independent contracting, Education Departement and Justice Department guidance on gender identity, and Consumer Financial Protection Bureau guidance on auto lending (but in the meanwhile, see a mid-2016 inventory here).

Donald Trump promised a regulatory moratorium, and to eliminate two rules for every one enacted. And the 115th Congress has promised to reform regulation and already passed three bills (the REINS Act, the Regulatory Accountability Act, and the Midnight Rules Relief Act) that await Senate consideration.

Doing these things but ignoring unilateral administrative actions (Obama’s and those yet to come), and agency sub-regulatory proclamations will shift future regulatory activity off the books.

We opened by asking about the executive pen and phone. The further undergrounding of regulation may be the real Obama legacy, if matters aren’t turned around.

Originally posted to Forbes.com.