Unless the Republican-led Congress can pass a repeal-and-replace healthcare law by its August break, President Trump will have had no legislative victories since he took office on Jan. 20. His sole Senate success was the confirmation of Neil Gorsuch on the Supreme Court to fill the seat left vacant after the death of Justice Antonin Scalia.
Despite the inability to get things done legislatively, the president has been very active in rolling back many of the regulations the Obama administration put into effect after June 2016. These actions figure well into how Mr. Trump and his senior advisor Stephen Bannon view “the deep administrative state.” Mr. Bannon describes this as the taxes, regulations, and trade deals that undermine United States sovereignty. Hence Mr. Trump’s campaign slogan, “Make America Great Again.”
For Mr. Bannon, Washington must focus on “economic nationalism,” leading to the U.S. withdrawal from the Trans-Pacific Partnership and the Paris climate agreement, coupled with the threat to end American participation in the North American Free Trade Agreement unless changes are made to reduce the U.S. trade deficit with Mexico.
In rolling back Obama-era regulations, the president relied on the 1996 Congressional Review Act, which was part of then–House Speaker Newt Gingrich’s “Contract with America.” It empowers both houses of Congress, with the president’s signature, to invalidate any regulation created by a government agency if the repeal occurs within 60 days that Congress is in session. These are not calendar days, but actual days in which Congress meets.
Until this year, the procedure was used only once: in 2001, President George W. Bush disapproved a rule regarding workplace safety.
Since February, President Trump, however, has repealed 14 rules and regulations issued in the last six months of the Obama administration. Some are environmental, others involve security, education, health, or retirement. Some will applaud the president for returning power to local control. Others will oppose the rollback as undermining federal authority, considering inaction among the states. Here are a few. Some speak for themselves.
One rule prohibited people with mental disabilities from purchasing a gun. Mr. Trump withdrew it on Feb. 28.
Another prohibited the states from performing drug tests on those seeking unemployment compensation. The president repealed it on March 31.
The Obama administration also issued regulations regarding implementation of Every Student Succeeds Act, the successor to President Bush’s No Child Left Behind Act. They required school districts to follow specific procedures to measure failing schools and to fix them. Obama-era rules also set forth measurements of teacher evaluations. Both were repealed on March 27.
The Department of Labor required companies to maintain for five years the records of those who suffered workplace injuries. Companies were subject to fines if they did not keep the records, but the rule is no longer in effect as of April 3. The question is whether there will now be sufficient time to identify workplace injury violations.
Another regulation required broadband companies like Verizon and AT&T to protect the privacy of their users in tracking their online activities, including those involving apps. Broadband companies generally have greater access to this information than other Internet services. The rule was also eliminated on April 3.
In December, the Department of Health and Human Service prohibited states from withholding family-planning funds simply because state leaders disapprove of their programs. The rule was clearly designed to protect funding for Planned Parenthood, insofar as abortion is part of its family-planning program. The Trump administration repealed it on April 13. Defunding of Planned Parenthood is also part of the House and Senate healthcare repeal-and-replace legislation.
The Department of Labor also established guidelines that states and local government must follow regarding those companies that do not offer retirement plans to their employees. It required them to offer IRA or self-funded retirement plans. Some argued that employees with self-funded plans reduced the burden on Social Security. President Trump viewed the rule as an infringement on states’ rights. He repealed the guidelines on local government on April 13 and the ones on states on May 17.
Even without a major legislative victory, the Trump administration has been, with the help of Congress, active in eliminating some of the vestiges of the Obama years. These actions have been fairly easy: After all, Republicans enjoy majorities in both houses of Congress. Once it becomes clear, however, that future legislative initiatives like the ongoing healthcare law problem, tax reform, or an infrastructure overhaul are too difficult to push through on a party-line vote, the administration may find it impossible to move forward unless it engages the Democrats in the legislative process. After all, there is still the budget to do before Oct. 1, and raising the debt ceiling and so many other actions that need to be undertaken before the end of the fiscal year.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.