What new presidents can (and cannot) do about regulation

Over the past several decades, regulation has become one of the most powerful tools a president has for setting policy. As such, it has become an increasing source of rhetoric from the people who want to be president. Real estate mogul Donald Trump (R) has said that he would “get rid of the regulations that are destroying us.” New Jersey Gov. Chris Christie (R) has pledged a six-month freeze on regulations. Sen. Bernie Sanders (I-Vt.) has promised to go beyond President Obama in leading the world on climate change.

{mosads}While regulation is a powerful policy-making tool, presidents do not have unfettered power to regulate or deregulate. What should we make of campaign promises regarding regulation? Let’s look at the Republicans first, who largely promise to roll back the Obama era regulations, particularly on the environment and on the financial sector.

The easiest regulations for a new Republican president to rescind will be those passed at the very end of the Obama administration. All recent presidents have suspended the effective date of regulations issued by their predecessors that had not yet gone into effect. While the effective date is suspended, the new administration can decide whether it wants to begin a regulatory process to repeal the regulation, and in doing so perhaps ensure that the regulation never takes effect. In practice, however, this impacts a small number of regulations, and virtually none of the ones being discussed by the presidential candidates.

For regulations issued in approximately the last eight months of the Obama administration, the new administration can ask Congress to use the Congressional Review Act. This law allows Congress to bypass filibusters in the Senate to overturn recently issued regulations. While this is a more powerful tool, it could not be used on any regulations issued before May 2016 and it has only been used successfully once since it was passed in 1996.

That leaves three options for an incoming presidents with a deregulatory agenda, none of them easy. He or she could ask Congress to pass a law overturning potential regulations, but this requires a filibuster proof majority in the Senate, something that it will be virtually impossible for Republicans to achieve. He or she could hope that judges overturn the regulations, which will happen in a few cases (regardless of whom the next president is), but not in many (regardless of whom the next president is). Or the new president can use the regulatory process to reverse previous regulations, but this will take years and courts do not often look kindly on such efforts.

What about Democratic pledges from candidates to use regulation to implement their agendas? Well, they are more likely to be able to follow through, compared to Republicans who pledge to roll back regulation, but the more ambitious the goal, the less likely it will be that regulations can be used to achieve it. Despite the rhetoric about presidents using regulation to exceed their authority, regulations must be issued pursuant to a statute passed by Congress. While courts are somewhat deferential to executive branch agencies issuing regulations, there are prominent exceptions, including examples where high-priority regulations from the Obama administration and the George W. Bush administration were overturned by the courts.

Regulatory policy will be an important difference between the eventual Democratic and Republican nominees for president and voters should listen to their regulatory priorities carefully. A Democratic president will issue more regulations with higher costs and more stringent protections of the environment and public health. A Republican one will issue regulations with the opposite characteristics. Both will be limited to some degree by laws passed by Congress and interpreted by the courts. If a Republican is elected, a small set of regulations issued by the Obama administration will be endangered. But most will not. Any rhetoric suggesting more than that is overblown.

Shapiro is an associate professor and director of the Public Policy Program at Rutgers University and a member of the Scholars Strategy Network.