By Stephen Dinan - The Washington Times - Updated: 12:54 p.m. on Friday, November 11, 2016
Forget about waiting for Congress — Donald Trump can eviscerate Obamacare and cripple President Obama’s global warming framework all on his first few days in office by directing policy from the White House and ordering his Justice Department to drop lawsuits that the current administration is pursuing.
Lawyers said getting rid of the government’s mandate that schools allow transgender students to choose their bathrooms could be as simple as retracting an Education Department letter, then letting judges know that is no longer the administration’s position.
Mr. Obama’s 2014 deportation amnesty, which is also the subject of court challenges, could be nixed by revoking the Homeland Security memo that laid out the policy, then telling judges it’s gone. No memo, no case.
It was always the danger lurking in Mr. Obama’s penchant for going it alone and declining to work with Congress — a new president who disagrees with him can quickly reverse many of his big-ticket accomplishments.
“What Obama’s pen and phone giveth, Trump’s Sharpie and Twitter will taketh away,” said Josh Blackman, an associate professor at the South Texas College of Law.
While repealing Obamacare outright would take congressional action, several controversial provisions could quickly be halted. The administration’s ongoing fight with Catholic nuns and other religious charities, demanding that they play a role in opting out of paying for contraceptives, could end.
Even bigger damage could be done to the House of Representatives’ lawsuit arguing that the administration broke the law by paying out Obamacare money that Congress specifically refused to spend.
A district court ruled this year that the administration violated the Constitution by doling out the money despite Congress’ wishes. The Obama administration has appealed, and the lower court judge’s ruling is on hold, but a Trump administration could drop that appeal.
“In this case, the withdrawal of the appeal would effectively accomplish what the Trump administration would likely support,” said Jonathan Turley, a professor at George Washington Law School who is serving as the House’s attorney in the case.
On the environment, rules from the Environmental Protection Agency and the Army Corps of Engineers governing power plants’ carbon emissions and water runoff could also get the heave-ho from a Trump Justice Department that decides they aren’t worth defending.
Senate Majority Leader Mitch McConnell, Kentucky Republican, said he hoped that would happen quickly. “Day One would be a good idea,” he told reporters.
There is precedent for making those kinds of decisions. Mr. Turley pointed to the Obama administration’s refusal to defend in courts the Defense of Marriage Act, which was enacted by Congress and signed by President Clinton.
“Changes in policy or presidents can result in substantial changes in the posture of litigation,” Mr. Turley said. “That’s a perfectly natural process, particularly when you have such a radical change in administrations. There’s no reason why one administration should pursue a policy initiative in court that they now oppose.”
Mr. Turley said Mr. Trump could even ask the Obama administration to request that judges halt the cases for now, to give the next administration a chance to have its say.
“Much of President Obama’s legacy stands on clay feet. The vast majority of his cited accomplishments were unilateral actions taken by executive authority,” he said. “What a president giveth, a president can take away.”
One of the areas where Mr. Obama stretched his authority the most was in immigration. He used prosecutorial discretion and a guidance memo from the Homeland Security Department to create a deportation amnesty for as many as 5 million illegal immigrants. Federal courts put a halt to the 2014 amnesty, but illegal immigrants have sued, saying the judges got it wrong.
Mr. Blackman, who has closely followed that case, said Mr. Trump could end all doubt by having his Homeland Security Department revoke the 2014 memo and let the judges know the case is moot.
Immigrant rights advocates have vowed to fight a Trump administration on immigration and are circling the wagons to defend a 2012 amnesty for illegal immigrant Dreamers.
“We will fight tirelessly alongside our partner organizations to protect DACA and ensure that immigrant youths are safe from deportation and that families aren’t separated,” said Cesar J. Blanco, head of the Latino Victory Fund.
Minority advocacy groups are also likely to howl over the direction a Trump administration could take on voting rights cases.
The current Justice Department has sided with challengers who say voter ID laws are too strict and has even refused to defend the federal Election Assistance Commission, which ruled this year that states can require people to prove citizenship as they register to vote.
That refusal to step in drew a stern rebuke from U.S. District Judge Richard J. Leon. “This is the first time in 14 years I’ve seen this,” he said.
Kris W. Kobach, the secretary of state in Kansas who was left to defend his state law and the EAC, said a Trump administration could change that.
“The Department of Justice can, and should, immediately start defending the federal agency, and that means defending the correct interpretation of the [motor-voter law] so that states may be permitted to ask for proof of citizenship,” he said.
Mr. Kobach said a Trump administration could also put an end to sue-and-settle practices. That is when agencies essentially collude with interest groups, inviting them to sue to force action. The agency then agrees to a settlement that ends up writing rules that the interest groups want.
The U.S. Chamber of Commerce says dozens of EPA regulations, including the power plant greenhouse gas emissions rules, were written this way, outside of the usual public process.
Hans von Spakovsky, senior legal fellow at The Heritage Foundation and a Justice Department lawyer under President George W. Bush, said one challenge will be surmounting inertia on the part of the lawyers who now work there.
“The Trump administration is going to have to clean out the Justice Department from top to bottom because of the complete politicalization by [Attorney Generals Eric H.] Holder and [Loretta E.] Lynch that destroyed the professionalism and ethics of the department — it will be a monumental task as difficult as Hercules having to clean out the Augean stables,” he said.
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