donald trump may not have to rely on executive action as often as president barack obama did. just as obama did at the outset of his presidency, trump will have majorities of his party in control in both the house and the senate | getty presidential transition for years, conservatives sought to rein in obama's authority. now, liberals are preparing to use the same arguments against trump. by josh gerstein 11/17/16 05:57 am est washington's massive about-face on executive power is underway. donald trump's election has triggered a whiplash-inducing role reversal in d.c. legal circles, as liberals who spent the past eight years defending president barack obama's use of his executive authority prepare to challenge trump's plans on issues like immigration, the environment and transgender rights, while conservatives who railed against obama for acting unilaterally on those fronts seem ready to back the new president's moves. story continued below "we are all going to learn to love federalism and the filibuster again," said thomas saenz of the mexican american legal defense and education fund, one of the attorneys who defended obama's immigration-related executive actions before the supreme court earlier this year. "we are certainly strategizing about ways to use the courts in different scenarios." while liberals may be able to throw some legal roadblocks in the way of the incoming trump administration's expected deregulatory efforts in areas like the environment and workplace protections, obama's critics say his broad reliance on relatively flimsy and fleeting forms of executive power have left much of his legacy vulnerable to being quickly overturned by trump. "i believe president obama and democrats made a fundamental error in imposing unilateral decisions through executive power," said george washington university law professor jonathan turley, a liberal who became a favorite of gop lawmakers in recent years because of his warnings that obama's executive actions exceeded his authority. "it put all of obama's legacy on clay feet which will now likely be shattered." "whatever obama's pen and phone giveth, trump's sharpie and twitter can taketh away," said josh blackman, a conservative law professor at the south texas college of law. "obama has set all these dangerous precedents....all the shortcuts obama took are now coming home to roost." obama's defenders say executive action was rarely the president's first choice, but effectively his only one, in order to pursue policy priorities in the face of a recalcitrant congress. "because of the obstructionism of the republican majorities, this was really the only way he could do anything at all," said greg craig, obama's first white house counsel. "it remains to be seen whether president obama has meaningfully changed executive power in this country....when people say he exceeded his authority, that's missing the dynamic of what happened in this city." presidential transition by michael crowley and shane goldmacher asked how he responds to liberals who say they're fearful that trump will take the same powers obama often used and deploy them to quickly carry out his policies, craig said: "i say, 'we should have won the election, man.'" of course, trump may not have to rely on executive action as often as obama did. just as obama did at the outset of his presidency, trump will have majorities of his party in control in both the house and the senate. he may be able to win legislation repealing obamacare and implementing pro-business policies in his agenda. however, the gop holds only a bare 51-48 majority in the senate, leaving most legislation vulnerable to a democratic filibuster unless republicans act to eliminate that tactic, which was already rolled back under democratic control. in addition, some aspects of trump's agenda<u+2014>like his plans to unwind trade deals and impose tariffs on chinese goods<u+2014>are opposed by gop leaders in congress. some obama policies, like interpretations of anti-discrimination laws to cover transgender people, were issued through informal letters that can be overridden by incoming officials or even ignored. others are in the form of executive orders that remain on the books until trump cancels or revises them, which he's free to do on day one. policy actions carried out through formal regulations could take longer to reverse, unless officials declare an emergency to revoke them quickly. some of the biggest constraints trump faces in rolling back obama executive actions may be political, rather than legal. trump and the other gop presidential hopefuls railed against obamacare on the campaign trail, but the president-elect has made clear he has no desire to strip all health coverage from the roughly 20 million people who gained health insurance under the program. and while trump may have the legal authority to cancel the work permits granted under obama's 2012 immigration executive action for immigrants who entered the u.s. illegally as children<u+2014>the so-called dreamers<u+2014>abruptly shutting down the program could cause an uproar, even if trump makes no immediate move to deport those young people from the u.s. ironically, as trump's liberal critics gear up to challenge his expected moves in areas like immigration and the environment, their legal arguments could be bolstered by court rulings leading to some of obama's most bitter defeats. the federal appeals court decisions blocking obama's immigration executive actions faulted him for making sweeping changes to policy without going through the formal and often protracted federal rulemaking process, which allows for notice and public comment before most significant changes to federal regulations. the rulings also granted states broad standing to sue the federal government over immigration policies. those decisions could now be used to bolster arguments that trump can't take similar acts by fiat in that policy area or others. "that ruling in u.s. v. texas could be of use to us," said saenz. "certainly, it's always the case whether on our side or the other side that you need to be wary of establishing some court precedent that could be a double-edged sword. that would certainly be the case here." a decision a federal judge in washington issued in may rejecting an administration effort to fund obamacare subsidies could be of use to lawyers trying to fight the trump administration if it tries to shift funds to create his promised "deportation force" or to erect a border wall, legal experts said. by nolan d. mccaskill but some of those pending cases could also be vehicles for expediting an unwinding of obama policies. by dropping appeals in some instances and conceding other suits, the trump administration could immediately shut down chunks of obamacare, as well as obama policies expanding overtime eligibility and imposing stricter controls on power plant emissions. however, some experts believe the justice department is unlikely to immediately chart a course change in pending cases. "it would be very unusual for the justice department to switch positions mid-stream in litigation," said georgetown law professor david vladeck, formerly a top federal trade commission official. "i have no doubt that the trump justice department will have a vastly different agenda than the obama justice department, and that itself is worrisome. but it will be a serious danger signal if the department abandons for political reasons cases that are pending." many of obama's key initiatives are already in litigation, but there's also the possibility that groups could file new suits to knock out obama-era policies, knowing or expecting that trump administration lawyers wouldn't defend them. one area where obama has publicly claimed to have tried to have a direct impact on his successor's policies is the use of armed drones to kill terrorist suspects around the globe. in 2013, he issued official "presidential policy guidance" establishing an approval process for use of lethal drone strikes and requiring case-by-case presidential approval for strikes aimed at americans outside combat zones. one aim of the so-called "drone playbook," which the administration agreed to make public earlier this year after a legal challenge, was to bring structure to what obama acknowledged was sometimes an "ad hoc" process. another was to have a structure in place that future presidents would inherit. "i said that we have to create an architecture for this because the potential for abuse <u+2014> given the remoteness of these weapons and their lethality, we've got to come up with a structure that governs how we're approaching it. and that's what we've done," obama said in april, adding that by the time he left office he wanted "an institutionalized process" in place regulating such strikes and putting out data about them. a white house official said this week that obama's effort was aimed at creating a durable infrastructure that would outlast his time in office, but critics note that nearly all the reforms and limits were imposed by presidential order, not legislation or litigation. as a result, trump could sweep them all away on his first day in office if he desires. "i think obama's efforts are going to prove to be not durable," said gabor rona, a visiting professor at cardozo law school and former legal director of human rights first. "i think it's more smoke and mirrors than reality, partly because of that and partly because they are executive rather than legislative pronouncements, i don't think they're going to have much controlling effect on the next administration." by edward-isaac dovere craig, the former white house counsel, countered that obama was always open to legislation in the war-on-terror and national security area. indeed, after the edward snowden disclosures about national security agency surveillance, congress eventually passed and obama signed a law banning bulk collection of telephone metadata by the government. however, craig said it was unrealistic and unwise for obama to campaign for legislation aimed at micromanaging presidential authority to use deadly force overseas or to acquiesce in litigation seeking to impose similar limits. "that's not new. no wartime president or president presiding over combat operations has ever argued that the courts be invited in to second-guess or judge a president's decisions....to hold him responsible for not being able to foresee excesses of a future president and anticipate them and have done something about it in advance, i think, is unfair," craig said. craig also noted that on two high-profile occasions obama did reach out to congress for more structure. in 2013, he paused planned military action over syria's use of chemical weapons, announcing that he wanted congress's backing for such a strike. and last year obama sent congress a proposed use-of-force resolution for the fight against the islamic state in iraq and the levant, putting a three-year limit on the operation <u+2014> a limit that would have expired in the next president's term. both efforts were rebuffed by congress, even though many lawmakers had previously pressed obama to consult with them more closely. and the president was widely mocked as a kind of politically naive civics professor for embarking on such quixotic missions. "those are two very explicit, concrete examples where the president decided to go to congress and sought their assistance and tried to work out a consensus including limitations on his powers and that of future presidents," craig said. "and it was thrown in his face both times." by bill scher by thomas wright by joshua zeitz by jack shafer
washington girds for role reversal on executive power - politico
josh gerstein michael crowley shane goldmacher nolan d. mccaskill edward-isaac dovere jack shafer