What will Trump do with the EPA?
President Barack Obama is infamous for using his pen and phone to upset the constitutional balance of powers by issuing executive orders. But long before Obama decided he was a one-man lawmaking machine, hundreds of wannabe dictators in the vast federal bureaucracy had realized they, too, had the power.
That may — emphasis on may — come to a screeching halt very soon.
A sort of political confluence of the stars will occur on Jan. 20, when President-elect Donald Trump is sworn into office. He will have the power to rescind executive orders issued by Obama. He has said he will use it on a variety of issues.
As president, one might think Trump would be able to pick up the phone and tell any Cabinet secretary to do or not do just about anything that is within the law as enacted by Congress. So he should have the power to stop the war on coal and affordable electricity, right?
One wonders. First, of course, we have to get past the question of just what Trump will do. Three months ago he pledged to rein in the Environmental Protection Agency. Now he says he wants to take another look at warnings about climate change. It is entirely possible he will not call off the EPA dogs.
Even if he decides to keep his promise, there’s a bit of a problem. For decades, under both Republican and Democrat presidents, the federal bureaucracy has been getting more and more liberal. And Congress has passed legislation making it very difficult to fire the mid-level officials who often make the rules and regulations under which we labor.
So even when everyone from members of Congress to presidents seems to agree something should or should not be done, enforcing the national will can be difficult or impossible. Think of the Department of Veterans Affairs.
Some bureaucrats have broad power, granted to them in years past by Congress and presidents. In effect, they can make and enforce laws, acting as judge, jury and executioner. It is ironic that a Republican president, Richard Nixon, allowed that to happen.
When the Clean Air Act was amended in 1970, the EPA was created with a wide mandate that was expanded during ensuing years. In effect, Congress told the EPA to keep the environment clean and to implement whatever rules and regulations were needed to do so. And the EPA was made the judge of what “clean” means.
So, should Trump tell the agency to back away from rules aimed at harming the fossil fuels industries, it is possible the mid-level bureaucrats could reply: Sorry, Mr. President. We can’t do that. The law not only allows us to do what we do, it requires us to be hard-nosed. And you can’t issue an executive order in violation of that law.
Enter the Congressional Review Act. It was enacted in 1996, and you can thank then-Speaker of the House Newt Gingrich for it. The CRA allows Congress to approve resolutions of disapproval regarding specific rules and regulations issued by federal agencies, like those used by the EPA. When such a resolution is passed, the rule or regulation in question is history.
CRA resolutions cannot be stopped by filibusters in the U.S. Senate, meaning minority Democrats can’t use that tactic to protect the bureaucracy.
Such resolutions can be vetoed by the president, which is why they couldn’t be used during the past eight years. But with Trump in office, there’s much less potential for a CRA resolution to be vetoed, though it is possible. Should that happen, Congress could try to override the veto. There, of course, the Democrats could prevent the two-thirds majority needed to override a veto.
I’m told some Republican lawmakers already are primed to use the CRA power. Regardless of what Trump does, such action may be necessary to actually rein in the bureaucracy on a variety of issues, ranging from the war on coal and affordable electricity to breaking the law to shore up Obamacare. It’s about time for the unelected dictators of the bureaucracy to be reminded they do not run the United States of America.
Myer can be reached at: firstname.lastname@example.org