Faced with partisan gridlock and the complexity of the federal bureaucracy, presidents from both parties in recent years have increasingly sidestepped Congress and formal rulemaking procedures to accomplish their regulatory goals. The use of executive orders, in particular, which are unilateral presidential directives with the force of law, has become more common, sparking fierce debate about the parameters of Oval Office power.
So far this year, President Trump has issued 210 executive orders – the largest first-year total since FDR (at 568). The volume is dramatic, to be sure, but there is a correlation between the unilateral powers granted to the president under the U.S. Constitution and the aim of the directives. A nexus with foreign affairs provides greater justification for unilateral action. Among the Trump orders, 25 percent involve foreign policy; 16 percent address executive branch operations; and 15 percent relate to tariffs and trade.
Two early directives highlight the administration’s quest to curtail the regulatory state. The first [Executive Order 14158] – one of 26 issued on inauguration day – established a new (albeit temporary) Department of Government Efficiency (DOGE). Its charge: “modernizing Federal technology and software to maximize governmental efficiency and productivity.”
The DOGE portfolio was broadened one month later under Executive Order 14219, which directs the agency “to commence the deconstruction of the overbearing and burdensome administrative state.” In practical terms, agencies had to work with DOGE personnel to review all regulations and to prepare to rescind or modify those deemed inconsistent with law and administration policy.
Also notably, President Trump’s Executive Order 14192 directs agencies to identify at least 10 regulations for elimination for every new rule adopted, and the total savings from repealed rules must “significantly” exceed the total cost associated with new ones. This was followed by Executive Order 14215, which for the first time directs so-called “independent agencies” (such as the Federal Trade Commission, Securities and Exchange Commission, and National Labor Relations Board) to submit significant regulatory proposals to the White House for review – as do most other regulatory agencies.
More recently, Executive Order 14270 calls for embedding sunset clauses into rules to trigger automatic expiration unless a regulation is explicitly reauthorized. The directive represents a major shortcut in the protracted process that otherwise may take years to repeal a single rule.
Opponents of the Trump administration seek judicial remedies to impede the reforms. But several recent landmark rulings by the U.S. Supreme Court reinforce the president’s efforts to moderate the regulatory state, including:
- Loper Bright Enterprises v. Raimondo, in which the court overturned the long-held (and widely abused) deference afforded to agencies’ own interpretations of their powers in ambiguous statutory provisions.
- West Virginia v. EPA, which revives the “Major Questions Doctrine” – the principle that agencies cannot act without clear, explicit authorization from Congress, rather than relying on vague or implied powers.
- Sackett v. EPA, which strictly narrows the EPA’s extensive regulation of wetlands on private property.
- SEC v. Jarkesy, which restricts the use of agencies’ internal administrative courts to adjudicate common-law claims.
These and several other cases are cited in a recent presidential memorandum requiring agencies to revoke a multitude of regulations deemed unlawful by the rulings.
Add new comment