Source: Environmental Law Institute – Regulatory Reform
in the Trump Era
All presidential administrations employ a wide variety of executive orders and other executive actions, which serve important organizational, symbolic, and policy purposes. However, this presidential power is limited: it largely consists of directives to the executive branch, it must be in accordance with the law, and its exercise is readily subject to modification or reversal by a successor president. The Obama White House’s presidential actions on environment and climate change likely will be subject to modification.
Process. Presidents issue a vast number of executive orders, proclamations, memoranda, and other instruments ranging widely in their purpose and effect, from internal management directives to sweeping changes in federal policy to exercises of military command. In the environmental field, these actions might be implemented in several ways: by the White House itself, through the Council on Environmental Quality (CEQ) or EPA, or via interagency coordination.
Except in the unusual case where Congress has authorized the President to make decisions having legal effect, executive orders are not lawmaking in the ordinary sense. Rather, they are directives to be followed within the executive branch, by virtue of the president’s inherent power to appoint or remove agency heads and other officials. But to bind government agencies and withstand judicial review, executive orders must be consistent with and operate within the limits of applicable law, whether found
in the Constitution or statute. An executive order can be revoked or modified by the president who issued it or a successor president; by an act of Congress, if the president was acting on authority granted by Congress; or by a court ruling that the order was illegal or unconstitutional.
Discussion. Especially in times of political gridlock, the idea of making sweeping changes “with the stroke of a pen” can be appealing, and presidents do advance some substantive policy goals through their orders affecting agencies’ structure, statutory interpretations, enforcement priorities, or contracting and procurement. But it is equally easy for a successor administration to alter or reverse these policies, and such changes routinely occur with a change of parties.
A new administration typically also takes executive action to temporarily freeze still-pending agency rules, but longer or indefinite delays may be subject to challenge in court.1 Executive orders cannot unilaterally revoke an agency rule that is already on the books, but they may direct the agency to begin the process of reviewing the rule and revising or withdrawing it through a subsequent rulemaking (see Fact Sheet 5).
Opportunities for Public Engagement. There is minimal opportunity for interested parties to engage in the development of presidential actions, and often no recourse afterwards in the courts. The only direct channel for affecting executive action is through discussions with White House staff. Congressional engagement is another possibility, but Congress rarely intervenes, and any resulting legislation would be subject to a presidential veto. Courts may be called upon to review the legality of executive orders; but the mere revocation of existing orders is unlikely to provide a legal basis for a lawsuit, nor is it clear who would have standing to sue.
1 E.g., Sierra Club v. Jackson, 833 F. Supp.2d 11, 26-28 (D.D.C. 2012).