Presidential Insulation

December 28th, 2016

In Presidential Maladministration (which Larry Solum said was Highly recommended), I discuss four species of White-House interference with the regulatory process: presidential reversals, presidential discovery, presidential nonenforcement, and presidential interference. In the six weeks since the election, I have discerned a fifth species: presidential insulation. That is, when the President personally directs executive action to insulate his policies from future changes, and make it harder for the incoming administration to engage in reversal. Several recent examples illustrate this principle.

First, President Obama’s recently discovered that the 1953 Outer Continental Shelf Lands Act all-along vested him with the power to prohibit drilling in the Arctic. Note that the President did not make this discovery at any point before the election, where there could be political fallout. Instead, this discovery was only made on the way out the door. But more to the point, he took this action in a way to make it tougher for the Trump Administration to undo. The Times reported:

In many cases, Mr. Trump and a Republican Congress in line with the new president’s ambitions will be able to roll back some of Mr. Obama’s most recent environmental regulations. But because of new and legally inventive strategies, Mr. Obama and his staff may well have built firewalls around environmental policies that could hold off his successor — or at least keep him at bay for several years.

Sort of like when the Clinton Administration removed the Ws from the keyboards before President Bush moved into the White House.

Alas, with Congress in Republican control, and a Trump appointee bound for SCOTUS, these firewalls may not stand.

Opponents of Mr. Obama’s environmental agenda said they fully expect Mr. Trump to take actions to legally undo the ban.

“We don’t see how this could be permanent,” said Andrew Radford, a senior policy adviser with the American Petroleum Institute, which lobbies for oil companies.

Mr. Radford noted that after President Bill Clinton had used the same law to withdraw 300 million acres from oil and gas drilling from an area that had already been designated as a marine sanctuary, President George W. Bush reinstated about 50 million acres to fossil fuel leases.

“Similar to how President Bush issued a memo in 2008 to add areas back in, we’re hopeful that the Trump administration will take a look at this to reverse that decision and we look forward to working with them to make that happen,” said Mr. Radford.

Second, the Obama Administration formally dismantled a national registry program that tracks entries into the United States from countries with terrorist activity. The program had more-or-less fall into desuetude during the Obama administration, but after the election, the executive branch took sudden action to make sure President Trump could not employ it. The Times reported:

The move by the White House to formally end the registry is among the actions being taken in the final weeks of the administration that could prevent, or at least slow, what Democrats fear may be a swift rollback of President Obama’s efforts on immigration and climate change.

This effort, however, was done in haste. At the Notice & Comment blog, Shoba Sivaprasad Wadhia writes that the traditional notice-and-comment period was skipped.

The Administrative Procedure Act (APA) normally requires agencies to give notice and open a period for public comment before issuing a rule, but there are also some important exceptions.

In the final rule, DHS invoked the “procedural rule” exception which applies to “rules of agency organization, procedure, or practice.” DHS explains how this final rule is a procedural rule adopted for “agency efficiency purposes,” because the regulations themselves are outdated and have not been used since 2011. DHS furthermore describes how removing these regulations reflects a current “practice and procedure” of the government and will not affect substantive rights or interests of the public.

In the final rule, DHS also invoked a second APA exception known as “good cause.” The “good cause” exception applies when undergoing notice and comment procedures is “impracticable, unnecessary, or contrary to the public interest.” Correctly, DHS finds “good cause” because the removal of the NSEERS regulations will again have no substantive effect on the public as they relate to a program that has not been utilized since 2011 and have been dormant since then.

Because the final rule is procedural, there is no delay in the effective date (such a delay is required only when a rule is substantive). In other words, the rule is effective immediately.

Here, the “good cause” is that President Trump will replace President Obama. For related reading, read up on CRS’s report on the “good cause” exception to notice and comment.

Third, the Obama Administration also rushed through 465 pages of regulations concerning the Affordable Care Act, also waiving the sixty-day review period citing “good cause.” Buried in this tome is a decision to make illegal risk adjustment payments.

Fourth, the Obama administration is planning the countermeasures it will take against Russia for its interference with the election. Knowing that the Trump administration will likely take a different position, the White House is rushing to finalize these measures before January 20, so that they cannot be undone. The Washington Post reports:

Administration officials would also like to make it difficult for President-elect Donald Trump to roll back any action they take.

“Part of the goal here is to make sure that we have as much of the record public or communicated to Congress in a form that would be difficult to simply walk back,” said one senior administration official.

Fifth, the Obama Administration’s recent action concerning Israel represent an attempt to codify the President’s perspective on the Middle East, with full knowledge that the incoming administration takes a different perspective. Whether the United State’s abstention before the U.N. Security Council is consistent its past positions is far beyond my expertise. However, as George Mitchell suggested, the United States could have simply moved to postpone the vote to allow the new administration a clean slate to address this important issue. It didn’t. By abstaining, the administration cemented its position on the world stage, making it tougher for the Trump Administration to undo it.

In response to this insulation, President-elect Trump charged on Twitter that President Obama has failed to keep his promise for a “smooth transition,” and that he will reverse all of these policies after January 20.

During Secretary Kerry’s remarks today, he acknowledged that the incoming administration may see things differently, but the current President wanted to articulate its foreign policy position.

President Obama and I know that the incoming administration has signaled that they may take a different path, and even suggested breaking from the longstanding U.S. policies on settlements, Jerusalem, and the possibility of a two-state solution. That is for them to decide. That’s how we work. But we cannot – in good conscience – do nothing, and say nothing, when we see the hope of peace slipping away.

For what purpose? In the long-run, perhaps they hope that a future President will adopt this platform. The two-state solution in exile, perhaps? But in the short term, the primary effect of this position is to attempt to bind the Trump Administration. This is unlikely to succeed, thought it will create headaches.

And why now? The Times observes:

With only 23 days left as secretary of state, Mr. Kerry, the former presidential candidate who made the search for peace in the Middle East one of the driving missions of his four years as secretary, spoke with clear frustration about Mr. Netanyahu’s continued support of settlements “strategically placed in locations that make two states impossible.” But he spoke knowing that the incoming administration of President-elect Donald J. Trump may well abandon the key principles that the United States has used for decades of Middle East negotiations.

Mr. Kerry wanted to deliver Wednesday’s speech more than two years ago, current and former aides say. But he was blocked from doing so by the White House, which saw little value in further angering Mr. Netanyahu, who has opposed any speech that might limit Israel’s negotiating room or become the basis for a United Nations Security Council resolution to guide the terms of a “final status” deal.

Now, after a remarkable confrontation with Israel after the Security Council’s passage of a resolution condemning Israeli settlements as a flagrant violation of international law, Mr. Kerry appears to have concluded there is nothing left to lose.

Because, once again, the political fallout will not fall to President Obama.

I expect to see a lot more instances of presidential insulation within the next 22 days (who’s counting?).

Update: For another example of Presidential Insulation, see First lady Michelle Obama’s garden.

Update 2: President Obama’s sanctions against Russia were, at least according to Andrea Mitchell, designed to “box in” President Trump:

She added, “They really are taking steps, they think  — if I could read into, or infer from the callers, from those on the call  — they are taking steps that will box in Donald Trump. How easily will it be undone? When asked whether Donald Trump and the new administration, according to their signals do not not agree with this, from what they said so far publicly, unless they see more information once they take office  — Will they let those spies back in the states? Will they reopen those Russian facilities? The briefer says that they think it would be very difficult for the president-elect or for any American president to reopen spy facilities, to let spies back in the country. That American business that has suffered hundreds of millions of dollars of damage from this would certainly not be happy to know that the president of the United States is supporting Russian intelligence. So they are taking steps that are reversible but are clearly not going to be easily reversed at first blush.”