If you measure the impact of a president by the signature laws they pass, then few people would consider President Barack Obama much of a big deal. Ever since the Democrats lost control of both houses of Congress in the 2010 midterm elections, there really hasn’t been much to write home about in terms of progressive legislation.
In other, quieter ways, though, Obama fundamentally changed how the federal government interacts with our everyday lives.
The Obama administration, largely cut off from the legislative route, has used the executive branch of government to engineer momentous shifts in everything from allowing LGBTQ people to serve openly in the military, to cutting carbon emissions, to telling schools to support transgender students, to scaling back immigration enforcement for some undocumented immigrants, to giving the feds the teeth to regulate predatory mortgage brokers and payday lenders.
Right now, Obama still holds the reins of the executive branch for another two months, and he’s broadly expected to keep pushing for more of these executive-level policy shifts. But when President-elect Donald Trump—a man who spent years challenging Obama’s very right to be president—comes into power, he will have a clear roadmap of how to turn the last eight years of change into a thing of the past.
Here’s what we can expect him to do, and how he’s going to try to do it.
On his own, and with a little help from his friends in Congress
“When President-elect Trump is in office, he will do what Rahm Emanuel—Obama’s then-chief of staff—did, which was issue a memo saying, ‘Freeze all regulations you’re currently working on,’” Sam Batkins, director of regulatory policy at the American Action Forum, a center-right nonprofit policy group, told me.
“Then he will basically say, ‘If you’ve submitted any regulations for formal publication in the Federal Register, where it becomes law, stop and don’t publish those regulations.'”
But that’s just the beginning of what we can expect in the next few months.
Loads of recent progressive regulations that Obama has already published could be at risk, with help from a still Republican-controlled Congress. They include rules that expanded the amount of workers eligible for overtime pay; rules on food labeling; the Environmental Protection Agency’s rules creating new emissions standards for heavy-duty trucks; maybe even the Federal Aviation Administration’s consumer drone regulations could get scaled back. And this doesn’t even include everything Obama may still have up his sleeve, including rules that are in the process of being finalized, such as those that would would regulate driverless cars, and creating new regulations on greenhouse-gas emissions from aircrafts.
A 1996 law called the Congressional Review Act gives Congress the power to strike down executive-branch regulations going back to the last 60 days that Congress was actually in session. This could undo anything that Obama has pushed through as far back as May or June of this year, American Action Forum’s Batkins estimated, including the regulations mentioned above. The only time Congress has invoked the law was in 2001, just after President George W. Bush came into office, blocking some of President Bill Clinton’s last-minute policy shifts.
“This could in effect undo a half year of Obama’s agenda, especially anything he rushes to push through now that he’s a lame-duck,” said Batkins.
And in the coming days, Congress is expected to meet to discuss passing a law known as the Midnight Rules Relief Act, which could strengthen Congress’ ability to undo anything Obama might be hoping to push through.
“We recommend giving Congress the power to stop all midnight regulations with one vote,” House Speaker Paul Ryan said in a statement about the proposed bill, which would likely pass in the new Congress, with Trump signing it into law. “Then administrations would know that they will be held accountable, even after they leave office.”
The 100-day plan
In Trump’s plan for what he would do during the first 100 days of office, he gives more insight into how he would work to reverse Obama’s legacy.
With the backing of Congress, Trump would immediately move to repeal Obamacare, Obama’s flagship piece of legislation that was pushed through Congress during those first two years when Democrats could actually pass laws. Trump would also stop all payments to the United Nations’ climate change programs that Obama has championed.
In addition, the 100-day plan said the Trump administration will require “that for every new federal regulation, two existing regulations must be eliminated,” a standard that would likely take direct aim at regulations Obama has passed over the years. This’ll be extremely hard for Trump to do since the rulemaking process would have to be started from scratch for every regulation that has already gone into effect—but hey, he said he’d do it.
Also in the plan: “Cancel every unconstitutional executive action, memorandum and order issued by President Obama.”
Unlike reversing federal regulations, this can happen in an instant. Doing so would immediately tear apart the Obama administration’s memo to the Department of Homeland Security Secretary that in effect gave deportation relief to millions of undocumented immigrants. The memo is tied up in a legal battle in the federal courts, but the contest would be irrelevant if Trump were to just cancel it.
Up until this point, Obama has been extremely shy when it comes to issuing executive orders: So far, he’s issued an average of only 33 per year—the lowest average since Grover Cleveland’s first term as president in the 1880s, according to The American Presidency Project.
But history tells us that lame-duck presidents tend to let them fly. According to an analysis of executive orders by conservative-leaning paper The Washington Times, Jimmy Carter issued 36, mostly related to the hostage crisis in Iran that defined the last months of his presidency; Ronald Reagan issued 12; George H.W. Bush issued 14; Bill Clinton issued 22; and George W. Bush issued 11.
Trump has vowed to cancel any executive orders that Obama might be planning, but we should still expect an uptick in the next few months, if only for symbolic reasons.
Kill me already
One of the only things that Obama can do between now and Inauguration Day that would be safe from the Trump administration is issuing presidential pardons and commuting sentences of people either convicted or suspected of committing crimes. These usually rise sharply in the last few months of a lame-duck administration. One person a lot of people are suspecting might get the pardon because of Trump’s threats to “lock her up“: Hillary Clinton (though the White House has declined to speak on this directly).
If you’re an Obama fan, basically all of this is bad news. But if you voted for Trump, this is exactly what you want to hear. It’s been a long, crazy fight, and against all odds, Trump won the White House. Now, as orange becomes the new black, Obama’s legacy will need no shortage of miracles to stop the wave from washing away every last one of his sand castles.