Floundering Like a Fox
Don’t Get Fooled, Trump Is Winning
While the focus is on a few high-profile losses and messes, the president is quietly, steadily racking up big wins.
They don’t hold Rose Garden signing ceremonies when a governmental regulation is repealed. But if they did, Donald Trump’s still-nascent presidency would be getting a lot more respect.
While the media focuses on sexy topics—Russian spy intrigue, botched Muslim bans, White House palace intrigue, emerging foreign policy challenges, and the health care bill’s collapse—Team Trump has been quietly rolling back job-killing regulations and appointing a boring (by design), yet highly competent, Supreme Court Justice who almost certainly will be confirmed on Friday.
Despite evidence to the contrary, President Trump is making changes in his first 100 days that will affect America for decades to come.
One of his key weapons has been the Congressional Review Act (CRA), a 1996 law that allows Congress to repeal recent regulations. Before Trump took office, this law had been used just once. Since taking office, however, President Trump has signed 11 of these CRAs into law, effectively reversing several last-minute Obama-era regulations.
The window for using this tactic is closing; the CRA can only be used within 60 days of Congress being informed of a new regulation. But here’s where things have the potential to get very interesting: Once a regulation is repealed, agencies are also banned from issuing new rules that are “substantially similar” to the one that was just vetoed.
Behind the scenes, some shrewd Republicans are quietly toying with the idea of anticipating liberal regulations and preemptively introducing them. It’s like the PreCrime unit in “Minority Report.” A Republican Congress and president would effectively sow the earth with salt to prevent any future regulation from being introduced. It would be a bold gambit, but this would transform the CRA from a purely defensive weapon into an offensive one.
President Trump is also targeting regulations that aren’t susceptible to the CRA. Last week, he signed an executive order to thwart the “Clean Power Plan,” which President Obama’s Environmental Protection Agency unilaterally instituted to curb carbon dioxide emissions (or kill the coal industry—take your pick).
Because this regulation isn’t recent enough to fall victim to the CRA, it will be harder to roll back. There will be court challenges. Nobody said this was going to be easy.
Of course, the most obvious evidence that Trump is changing the future is the Neil Gorsuch nomination. Supreme Court Justices are given a lifetime appointment, so it’s hard to overemphasize the potential impact of confirming a young nominee who shares your worldview. But this could be just the beginning. Rumors swirling about the possibility that Justice Anthony Kennedy might soon announce his retirement serve as a reminder that Trump could dramatically shift the balance of the Supreme Court for decades.
It’s also important to note that there is a link between judicial appointments and regulations. As I noted back in January, Neil Gorsuch has criticized Chevron Deference—an extra-Constitutional principle that says that courts should defer to agencies in terms of their interpretations of statutes. In the future, Republicans hope to move these decisions back into the purview of the legislative branch.
The rap on Trump is that he gets media buzz and attention but doesn’t do the work. But what if the story of his early administration is quite the opposite? While the media has focused on the shiny objects—the scandals and legislative failures—they have all but ignored the fact that the Trump administration has been quietly changing America. Whether by design—or by coincidence—Trump’s gains have been overshadowed by the chaotic, the urgent and the interesting.
In a world that fetishizes positive action and putting points on the board, there’s endless breathless play-by-play for a game where the trash-talking, flashy quarterback is sacked repeatedly. Meanwhile, the real action is taking place under the radar, where the team is assembling an impressive roster of defensive linebackers who can handle blocking and tackling in the trenches for years to come.
Although this stands in sharp contrast to Trump’s action-oriented rhetoric, it doesn’t lessen the fact that, slowly but surely, he is moving the country in a more conservative direction. There’s no telling how many federal judges, never mind Supreme Court Justices, he might appoint. There’s no telling how many bureaucratic regulations he might repeal.
Most political change is incremental. The greatest trick Donald Trump ever pulled was convincing the world that his presidency was floundering.