Unraveling Obama-Era Regulations on Day One with the Congressional Review Act
From: Notice & Comment | A Blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice
by Josh Blackman
Over the past two weeks, I have been asked more times than I can count how the Trump Administration can unravel the Obama Administration’s policies. My answer usually falls into one of three categories.
First, policies that were instituted through guidance documents, such as executive memoranda and “Dear Colleague” letters, which I’ve called Government by Blog Post, can be reversed immediately. Ideally, these documents should be rescinded not only because there has been a change in administration–what DOJ euphemistically refers to as “upon further reflection“– but because the old policy was illegal. For example, it is not enough to simply rescind the DAPA memorandum from the Department of Homeland Security, but to also ask the Office of Legal Counsel to take a second look at it in light of the Supreme Court’s 4-4 affirmance in U.S. v. Texas. This is a much closer issue than the memorandum made it seem, and it is entirely plausible for the Office to conclude that Judge Smith’s decision for the Fifth Circuit was correct. These decisions are not subject to litigation. (Liberals may suddenly have second thoughts about Auer deference).