When a new president is elected, millions of voters begin to hope that the work of the previous administration will be undone and all of the policies and promises on which their candidate campaigned will come to fruition. As history tells us, that’s only partially true. The phone and the pen, about which former President Obama ominously warned his opponents, have their limits. The reviled overtime rule was started with an executive order, but it was the months of work conducted afterwards by the Department of Labor that led to its writing as a binding rule, only to be challenged in the courts.
The regulatory process is long, detailed and many times a runaway locomotive that appears unstoppable. While one would think that the president of the United States would have the authority to stop them in their tracks, the reality is they often do not, as is the case with many of the so-called midnight regulations that were rushed through last December and January. Something else to bear in mind, the idea that President Trump and his agencies simply don’t have to enforce the law, that much is true, but never forget the public’s ability to fight back.
The previous two administrations give us a glimpse into what we may expect in the enforcement of laws and regulations. It’s essential to remember that items, such as the Affordable Care Act, are still the law of the land, and repeal will come with significant debate, not to mention a major fight in the Senate. Additionally, stakeholders across the country will have tools in their arsenal, most notably the courts. In 2006, the EPA was sued for lax enforcement of the Clean Air Act. A dozen states brought suit, going all the way to the Supreme Court, over the requirements in the law to regulate greenhouse gas emissions if it was determined that these emissions were determined to endanger public health. In fact, the states, joined by other special interest groups, sued the EPA in attempt to force the agency into rulemaking.
Conversely, President Obama’s attorney general made the decision to “not defend”the Defense of Marriage Act (DOMA). But until the U.S. Supreme Court agreed in 2013, DOMA was still lawfully passed by Congress and signed into law by the president but not enforced by President Obama.
Moving on to the Capitol, there’s something else favoring President Trump. There are about 11 Democratic senators up for reelection in two years and in states he won, ostensibly, by voters who may support those challenging the incumbent in 2018. These senators have a choice: stand and fight Trump’s agenda and risk the ire of the voters in two years, or reach across the aisle and work to improve the legislation as it is moving.
First on deck, as reported, is addressing the Affordable Care Act, beginning with executive action where possible, second by repealing the existing law and third by replacing it. This will be a year’s long process to get it done right. Assuming the 52 Republicans stick together, eight or nine more votes will be needed to reach the magic number of 60 and to reset the state of healthcare in our country. Once again, this is a difficult challenge for senators in the opposition party as it’s both an opportunity to stand and fight or work together. Repeal is just one part of the two-step “repeal and replace” calculus. Republicans will likely need a long transition window to wind down the law as it works to implement a new one, creating as seamless a process for those dependent on the programs within the law.
Who knew last fall we’d find ourselves in such a situation? The windows of opportunity are opening, and it’s up to us to leverage these openings, insert ourselves into this process and speak up for what’s important to our industry and our businesses. Every stakeholder with an interest in our government’s policies will have not just the ability but the responsibility to speak out and educate his/her elected officials on what matters to him/her. ASA is ready and looks forward to providing these tools and opportunities to shape public policy in 2017.
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