It was never a secret that, once inaugurated, Donald Trump would immediately begin undoing regulations that took effect in the last months of the Obama administration. We knew that, for such regulations, Trump would ask Congress to use the Congressional Review Act, which allows Congress to bypass filibusters in the Senate to overturn recently issued regs.
President Trump and Congress have undertaken this process. The Washington Post is not amused. It complains:
After just a few weeks in office, the new administration is targeting dozens of Obama-era policies, using both legislative and executive tactics. The fallout is already rippling across the federal bureaucracy and throughout the U.S. economy. . .
But ask yourself this: Was the U.S. economy under-regulated until just before President Obama left office? The fact is that none of the regulations vacated pursuant to the Congressional Review Act [note: so far, anyway] was important enough to have been finalized until the dying embers of the Obama administration.
It’s also the case, as it is with all regulations, that these regs were put into place by bureaucrats, not legislators. Although they create “fallout throughout the U.S. economy” (in the Post’s telling), they never received serious scrutiny from the American people’s elected representatives.
They have now fallen by the wayside because the American people’s elected representatives, in concert with their elected president, determined that they should.
It isn’t just the Washington Post that’s unhappy about this. You would never have guessed it, but recently departed federal employees are devastated that the regulations they worked on at the end of the Obama years are now being undone. Politico has this scoop.
Yuval Levin has fun with it. He observes:
[T]hese former officials describe the rollback of regulations as a failure of governance, and even of democracy. Joe Pizarchik, who ran the Office of Surface Mining Reclamation and Enforcement in the Interior Department throughout the Obama years [tells Politico]. . .“My biggest disappointment is a majority in Congress ignored the will of the people.”
That majority in Congress was of course elected by the people, while Pizarchik wasn’t. But it gets worse. “I believe there’s a good chance that, in a legal challenge, that a court will overturn Congress’ actions here,” Pizarchik tells Politico, “as an unconstitutional usurpation of the executive branch’s powers.”
But of course the president, who runs the executive branch (and was also elected by the people), would have to sign off on Congress’s rolling back of these rules. That’s why Congressional Republicans couldn’t do this while Obama was in office. They had bigger majorities in both houses a year ago than they do now, after all. What they lacked was the president’s signature.
So would an act of Congress signed by the president that undoes a regulatory agency’s interpretation of its mandate from Congress be an unconstitutional usurpation?
Not if you believe in democracy.
Reportedly, the advent of the Trump administration has propelled George Orwell’s 1984 to the top of the best-seller list. But it’s the outlook of bureaucrats, as described by Politico, that should remind us of an Orwellian world.