Donald Trump made a lot of promises during his run for the White House, and his transition team picks seem to support some of the most egregious. There's a world of difference, though, between a promise and the capability to fulfill that promise—even for the holder of the highest office in the land.
Starting this week, and continuing every week between now and Inauguration Day, January 20, 2017, we'll take a look at these promises. Rather than focus on whether Trump will fulfill a promise, we'll look at if he can fulfill a promise.
Where does his wishful thinking end, and his Executive Powers begin?
Abolishing the EPA
Among the most consistent promises Donald Trump made during his race for the White House is his promise to "abolish the EPA".
From a Fox interview in 2015:
Q: Would you cut departments?
Environmental Protection, what they do is a disgrace. Every week they come out with new regulations.
Q: Who's going to protect the environment?
TRUMP: We'll be fine with the environment. We can leave a little bit, but you can't destroy businesses.
We'll ignore for the moment how leaving a "little bit" of the environment allows for life, much less industry. Instead we'll focus on Trump's claim to abolish the EPA. Can he do this?
In a word, no.
But, you might ask, how can this be? After all, Richard Nixon created the EPA via executive order. Why can't Trump eliminate it via an executive order?
To understand why he can't, we'll first need to take a brief historical look at the authority that enabled Nixon to create the EPA, the Reorganization Acts.
The Reorganization Acts
Several Presidents have wanted to reorganize the executive branch of the government to make it more efficient or meet new needs. Before 1939, each change required individual Congressional approval, a cumbersome process.
To simplify the procedure, Congress passed the Reorganization Act of 1939, giving then President Franklin D. Roosevelt the power to hire assistants and effect a reorganization of the Executive branch. How the Act worked is that Roosevelt would submit a reorganization plan to Congress. Unless Congress specifically rejected the plan, it went into effect.
The first plan was labeled Reorganization Plan 1 of 1939, and through it, FDR created several agencies, including the Federal Security Agency and the Civilian Conservation Corps, as well as modifying authority for existing functions, such as moving the Farm Credit Administration under the USDA.
Though willing to give FDR his reorganization, Congress was wary of granting the Executive Branch so much power without oversight. The Reorganization Act of 1939 had a two year termination built into it. Every new Reorganization Act or Amendment since has had a built-in termination.
The Reorganization Act of 1939 was unique in that it required Congress to exercise a legislative veto. In other words, rather than approve of a Presidential proposal, the normal course Congress takes, those in Congress who disapproved of a proposal would have to specifically vote no against it. Otherwise, the plan would go into effect by default.
The EPA was created under a re-authorization of the Reorganization Act of 1949
Since 1939, Presidents asked for authority to submit reorganization plans. New Reorganization Authorization Acts were passed in 1939, 1945, and 1949. From that point until a new Reorganization Act was passed in 1977, Presidents sought authority to submit reorganization plans by asking for extensions on the 1949 Reorganization Act.
This included President Richard Nixon who, in 1970, submitted to Congress Reorganization Plan 3 of 1970, establishing the creation of the Environmental Protection Agency (EPA), as well as the National Oceanic and Atmospheric Administration (NOAA) and the Environmental Science Services Administration.
It's important to understand that these are reorganization plans. The EPA wasn't a sparkly new agency given control over sparkly new laws. Several Departments gave the EPA authority over existing functions, including the Bureau of Solid Waste and the National Air Pollution Control Administration.
Included in these existing functions was authority over existing environmental laws, one of which was rewritten by Congress and became the Clean Water Act. Once the EPA was established, it then became the natural enforcement agency for other new environmental laws, including the Clean Air Act, passed the same year the agency was created.
The State of Reorganization Authority Today
The last reorganization act passed was the Reorganization Act of 1977, under Jimmy Carter. It's significant to Trump's plans to abolish the EPA because it limited what could be included in a reorganization plan.
Now, reorganization plans can not create or eliminate a new cabinet-level department, nor a regulatory agency; it can not transfer all functions from a specific department or regulatory agency, nor can it combine departments or regulatory agencies. In addition, a reorganization plan cannot eliminate an enforcement function or statutory program.
President Reagan asked for reorganization authority and in 1984, an amendment was passed granting such authority but only between November and December 31, 1984. The Senate than promptly adjourned for the year, preventing Reagan from submitting any reorganization plan.
The primary purpose of the 1984 Amendment wasn't to frustrate Reagan but to change the procedure by which a reorganization plan was submitted to Congress. Because of concerns raised about the legitimacy of a legislative veto based on the the Supreme Court decision in INS. v. Chadha, reorganizations would now require Congressional approval rather than go into effect by default. Reorganization could no longer occur via executive order.
George H.W. Bush did not ask for reorganization authority. Bill Clinton did, but did not submit any plans. Both George W. Bush and President Obama asked for reorganization authority but it was not granted.
Trump Just Can't Unilaterally Abolish the EPA
When Trump takes office in January, he will not have the authority to reorganize the Executive Branch. Even if he did, he would not have the authority to eliminate a regulatory agency or department.
If he wanted to eliminate the Department of Education or Energy, he'd specifically have to ask for an act in Congress to do so.This would require a significant undertaking to ensure either a clean termination of function, or a shift of function to another agency or department.
If Trump wanted to reorganize the Executive Branch, he could ask for reorganization authority, and a Republican-controlled Congress is likely to grant him some limited authority. However, though Nixon was able to create the EPA using an executive order, the 1977 Reorganization Authority Act will not allow Trump to eliminate the EPA via an executive order.
Even if Trump could eliminate a regulatory agency using a reorganization plan, changes in the 1984 Reorganization Authorization Amendment would still force him to get approval from Congress. Again, he could no longer use an executive order.
Just like with the Department of Energy and Education, Trump's administration will have to get authority from Congress to eliminate the EPA.
All A Regulatory Agency Is, Is the Laws It Enforces
A regulatory agency is an agency given enforcement action for laws. Even if you eliminate the agency, the laws still exist.
If Congress is willing to eliminate the EPA—and eagerness to do so is not as widespread in Congress as some might think—it and Trump's administration, would have to also include in the bill a plan for managing existing EPA functions. This includes administration for laws such as the Clean Water Act and the Clean Air Act. Abolishing the EPA does not eliminate the rules, regulations, functions, or responsibilities of the EPA.
To eliminate the agency without regard to its functions would introduce a level of chaos the Trump Administration could not possibly contain. Or survive.
Which leads me to my next installment of "Can Trump Do That". In it, I'll cover what Trump can and cannot do when it comes to existing EPA rules, regulations, functions, and responsibilities.
For a beautifully detailed history and analysis of reorganization authority, I recommend the PDF Presidential Reorganization Authority: History, Recent Initiatives, and Options for Congress, by Henry B. Hogue.