Presidential Transitions: The New Rules

69 Pages Posted: 16 Sep 2021 Last revised: 6 Dec 2021

See all articles by Bethany Davis Noll

Bethany Davis Noll

State Energy & Environmental Impact Center

Richard L. Revesz

New York University School of Law

Date Written: September 10, 2021

Abstract

The Trump administration was unusually aggressive in using an obscure set of tools to undo the Obama administration’s regulatory legacy: Congressional Review Act disapprovals, requests that courts hold in abeyance pending cases challenging Obama-era regulations, and suspensions of final regulations. These actions could be seen as part of the Trump administration norm breaking approach to regulatory policy, under which it also provided shoddy justifications for its actions, ignored statutory commands, and failed to comply with procedural requirements. There has been a general assumption that the norm-breaking was a result of the Trump administration’s lack of respect for the rule of law and that it would subside when a new administration took office.

This Article challenges this assumption with respect to the manner in which presidential transitions are conducted, showing that the Trump-era toolkit on rollbacks has now also been used aggressively—in some cases more aggressively—by the Biden administration. Actions that might have been seen as an aberration four years ago should now be regarded as integral components of the administrative state.

As a result, the nature of the presidency has changed in significant ways. A one-term president will likely not be able to implement much regulatory policy that is durable. And to do so, a president has a much shorter period during which regulations are likely to be protected from quick undoing by a successor of the opposite party, from roughly three-and-a-half years to about two years. The impact of this trend is particularly significant because, during the current era of congressional gridlock, presidents rely on regulations as the primary way in which to implement their domestic policy programs.

Keywords: administrative law, regulatory policy, presidential transitions, regulation, deregulation, Congressional Review Act, abeyances, suspensions

JEL Classification: K23, K32

Suggested Citation

Davis Noll, Bethany and Revesz, Richard L., Presidential Transitions: The New Rules (September 10, 2021). Yale Journal on Regulation, Forthcoming, NYU School of Law, Public Law Research Paper No. 21-43, Available at SSRN: https://ssrn.com/abstract=3922902

Bethany Davis Noll

State Energy & Environmental Impact Center ( email )

139 MacDougal St, #307
New York, NY 10012
United States

Richard L. Revesz (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6185 (Phone)
212-995-4590 (Fax)

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