Executive redo

In his January 2014 State of the Union address President Barack Obama told members of Congress he was tired of Republicans not taking up his priorities. He vowed to use a pen and phone to implement his agenda.

“America does not stand still, and neither will I,” Obama said, echoing a message he’d delivered to his Cabinet two weeks prior. “Wherever and whenever I can take steps without legislation to expand opportunity for more American families, that’s what I’m going to do.”

The declaration was not a new policy, but it did signal a significant ramp-up in Obama’s willingness to take unilateral action on a range of important issues. Over the next three years Obama began normalizing diplomatic relations with Cuba, negotiated the Iran nuclear deal, signed the Paris climate change agreement, raised the minimum wage for federal contractors, and more.

Now those overreaches stand in peril. “If you live by executive action, you die by executive action,” Cato Institute legal fellow Ilya Shapiro said while explaining terminology and what to look for.

The word “action” is key. Democrats and Obama himself have defended his decisions and noted he’s issued fewer executive orders than either of his predecessors, Republican George W. Bush and Democrat Bill Clinton. That’s technically true, but Obama has used presidential memorandums more often than any president in history.

Obama is the first president to use memorandums more often than executive orders. Both types of action carry the same legal force and can implement far-reaching policies without congressional approval. One notable difference: Executive orders require a citation of the applicable law on which they are based, while memorandums do not.

Some of Obama’s most consequential actions have come through presidential memorandums, guidance, and reinterpretations of long-standing rules and statutes. Regulations that have developed according to the standard rule-making process, including a period for public comment, will take a similar process to reverse—but many actions need only the stroke of a pen.

Every president since George Washington has issued executive orders, but the Constitution doesn’t establish a specific definition or guidelines. The Supreme Court has ruled both for and against presidents after opposing parties challenged executive authority to issue an order.

Once the executive branch expands its power in a certain area, attorneys general have often written memos effectively ratifying it. Bush pushed the limits of foreign-policy-related action in the name of national security, while Obama has more often acted on domestic issues. It’s unclear how much—or whether—Trump will refrain from using his own executive actions, but conservatives in Congress are already vowing to act as a check on him.

“If Trump starts making law with executive orders, we should be the first to speak up,” said U.S. Rep. Matt Salmon, R-Ariz., a member of the conservative House Freedom Caucus.

In the meantime, it’s safe to say Trump will promptly target many of Obama’s signature actions as president. Here are eight areas to watch:

Immigration: Months before his 2012 reelection, Obama announced Deferred Action for Childhood Arrivals (DACA), a program that gave two-year work permits to immigrants who were illegally brought into the United States as minors, if they met a list of criteria. Through June 30, U.S. Citizenship and Immigration Services had approved almost 750,000 persons at least once (and denied 60,000).

DACA is arguably Obama’s most sweeping executive action and is likely to be among the first to go. Not only could Trump end the program, he could suspend permits already issued and use the database of personal information to target recipients for deportation.

DACA’s sister program, DAPA—Deferred Action for Parents of Americans—will never get off the ground. Obama issued DAPA in 2014, shortly after the midterm elections, and it is currently stuck in legal limbo. The issue will now likely go away.

Past enforcement measures such as Secure Communities, a controversial program that linked local jails with federal immigration authorities, will likely return under Trump. Some Obama-era immigration guidelines, such as prioritizing deportation of criminals, may remain unchanged, based on postelection comments Trump made during a 60 Minutes interview.

Gun control: Like many of Obama’s executive actions, his gun control orders followed a failed attempt to move legislation in Congress. In 2013, Obama announced 23 executive actions to combat gun violence, ranging from information-sharing between federal agencies to commissioning the Centers for Disease Control and Prevention to research the causes of gun violence.

In 2016, Obama issued additional gun regulations. Trump has not taken a stance on all these specific actions, but he ran as a strong Second Amendment proponent, so expect all of Obama’s actions to receive more scrutiny.

Labor rules: In 2014 Obama signed an executive order raising the minimum wage to $10.10 for federal contractors. Obama said the increase would boost the economy, but Republicans said it was an overreach that could cost some people their jobs.

The minimum wage hike was Obama’s most publicized labor action, but it was hardly alone: He also expanded paid maternity leave for federal contract workers, and in October he signed executive action aimed at curbing “wage collusion” and other “anticompetitive practices.”

Trump has said he supports paid time off for new mothers, but it is unclear how he would respond to the other labor-related rules. Polls show most Americans support a modest minimum wage increase, but not the $15 hourly wage some Democrats have proposed.

Environment: The Environmental Protection Agency’s (EPA) Clean Power Plan (CPP) is probably the most prominent of Obama’s numerous executive actions on climate change. The 2015 initiative is aimed at curbing greenhouse gas emissions under the authority of the Clean Air Act, but Republicans, companies, and even some liberal scholars argued the EPA lacked necessary authority to enforce the new rules.

Voting to halt the CPP last February was one of Justice Antonin Scalia’s final acts as a member of the U.S. Supreme Court—an unusual move by the court that came as a surprise to many. The plan is still in the courts, but expect Trump to rescind it on day one.

Trump’s team is reportedly already exploring ways to withdraw from the 2015 Paris Climate agreement, a 190-nation pact to lower greenhouse gas emissions. It came into effect on Nov. 4, but during his campaign Trump vowed to “cancel” it upon taking office—a position reinforced in the Republican platform.

Last year Republicans argued the climate deal qualified as a treaty and would require the advice and consent of two-thirds of the Senate. Obama maintained it was only an “executive agreement” and he had the power to sign it on his own—rationale Trump will now likely use to vacate it. Without U.S. participation, the agreement may unravel.

In mid-November the administration announced a five-year plan to bar oil and gas exploration in the Arctic Ocean. Republicans vowed to work with Trump to reverse the plan, but since the Department of Interior used a formal process, it would take time to unwind.

Cuba: In December 2014 Obama announced sweeping changes to U.S. policy with Cuba. Although he could not fully lift the embargo Congress enacted in 1962, he’s unilaterally loosened travel and business restrictions, opened a U.S. embassy in Havana, and resumed diplomatic relations, including a presidential visit to Cuba this year. Trump has suggested he would negotiate a better deal, but in September he said he would reverse Obama’s actions.

Closing the U.S. military base at Guantánamo Bay, Cuba, was one of Obama’s 2008 campaign promises. Obama has released some 200 detainees, leaving only around 60, but he cannot close the base completely without congressional approval.

Trump has vowed to keep the base open and last April said, “We’re gonna load it up with some bad dudes, believe me. We’re gonna load it up.”

Iran nuclear deal: Republicans argued the 2015 Iran nuclear deal should be subject to a two-thirds ratification vote in the U.S. Senate as a treaty, but Obama insisted he had the authority to execute it alone.

Trump has called the agreement a “disaster” and “the stupidest deal of all time.” At times he vowed to tear it up—including in March, when he told the American Israel Public Affairs Committee conference it would be his top priority—but Walid Phares, a Trump adviser, tempered those expectations in postelection interviews.

“‘Ripping up’ is maybe a too strong a word,” Phares told BBC radio. “He will take the agreement, review it, send it to Congress, demand from Iranians to restore a few issues or change a few issues. And there will be a discussion. It could be a tense discussion.”

Other Trump advisers have taken more hawkish stances on the deal, but one thing seems clear: Trump will at least try to renegotiate it.

Obamacare: All Obamacare-related issues would disappear with full legislative repeal, but that is unlikely to happen in the short term, since it would take 60 votes in the U.S. Senate and Republicans will likely have only 52. In the meantime, the GOP plans to dismantle major parts of the law using a budget maneuver called reconciliation—the same mechanism Democrats used to pass it.

In an attempt to encourage Obamacare enrollment, the administration has unilaterally waived penalties, suspended mandates, and moved deadlines—inadvertently contributing to the law’s demise. Those actions likely will end.

LGBT issues: Also in 2014—Obama’s “year of action”—the president amended an existing executive order to prohibit federal contractors from discriminating based on sexual orientation or gender identity, putting the categories on par with race, gender, and religion. The LGBT community trumpeted the move, but critics said it could prevent religiously devout individuals, including Jews, Muslims, and Christians, from applying for federal contracts.

This year the departments of Justice and Education issued “guidance” to all U.S. public schools requiring them—at risk of losing federal funding—to allow transgender students to use the bathroom or locker room facilities that match their perceived gender. The directive was based on a novel interpretation of Title IX, a nondiscrimination law, interpreting “sex” to include gender identity.

The Supreme Court was set to take up a transgender case in its current term, but Trump could easily make it a moot point: “The transgender letter to schools was from a low-level bureaucrat, and it’ll only take a low-level bureaucrat to say, ‘never mind,’” Cato’s Ilya Shapiro said.

It remains unclear how Trump will approach LGBT issues: He has criticized North Carolina’s bathroom law and said he’s fine with the Supreme Court’s same-sex marriage ruling, but he’s also made promises to protect religious liberty.

Other key changes: The abortion pill mandate will become a distant memory, and the Department of Health and Human Services will discontinue payments to insurance companies that Congress disallowed.