As the Trump administration prepares to take over, it has revealed some of the policy changes it plans to implement. These include reducing environmental restrictions, amping up enforcement of immigration rules, and deregulating businesses. Trump’s administration will no doubt want to implement some of these changes faster than would be possible through the notice-and-comment- process. And to the extent that one of Trump’s themes has been decreasing government spending, the administration will probably be looking for ways to make these changes on the cheap. Executive orders provide one way to accomplish these goals. But there are some other tools that I expect the Trump administration to use.
To start, and most obvious, I expect the Trump administration to abandon the Obama administration’s policies of not enforcing laws that Trump’s administration wants to enforce. Enforcement policies are just policy statements, and agencies can easily change them just by issuing a new statement. Thus, Homeland Security will likely overturn the reprieve given to immigrants under DACA by issuing a policy statement reinstating enforcement of the immigration laws.
At the same time, the Trump administration will probably take a page out of the Obama administration’s book and refuse to enforce whatever rules it dislikes. The Clean Power Plan could fall into this category. That rule was finalized last year. The administration cannot change that rule without notice and comment, but it can substantially undermine it by refusing to enforce it. That approach is obviously not ideal. It would create uncertainty for businesses that are leery that the administration might decide to start enforcement. And various groups that favor the Plan would likely file judicial challenges, making arguments akin to those currently pressed against Obama’s refusal to enforce the immigration laws. Still, non-enforcement would be a pretty effective temporary measure.
Another tool that the administration will probably use to accomplish fast, cheap change is to change the scope of rules through agency interpretations of those rules. Although some justices have criticized Auer, the current Court lacks the numbers to overturn Auer. It is possible that some liberal justices who supported Auer could change sides when faced with conservative interpretations, but those votes could well offset by switches by some of the conservative justices who have criticized Auer in the past. And I suspect whoever is appointed to fill the vacancy will be inclined to grant Auer deference to the new administration.
Yet another way the administration may achieve at least some policy changes is to stop fighting currently pending court challenges to disfavored rules. The Clean Power Plan falls into this category too. The D.C. Circuit heard argument on the Plan a few months ago, and the Obama administration strongly defended the Plan. But if the court does not issue its decision before the change in administration, it’s possible the administration will file a brief abandoning that defense. The court doesn’t need to overturn the rule based on the decision not to defend it, but it certainly could choose to do so.
Needless to say, none of these measures are great ways to make permanent policy changes. But they are relatively quick, inexpensive ways of implementing policies, and they’ve been used by other administrations before. I would be surprised if we didn’t see most if not all of them used very soon after the new administration is in place.