President Obama is putting the finishing touches on his regulatory legacy.
In recent weeks, the administration has issued a flurry of new rules to expand overtime pay to millions of Americans, combat climate change with stronger standards for methane emissions and protect senior investors with new requirements for financial advisers.
While the Obama administration is expected to pursue new rules aggressively in the months ahead, the window for issuing major regulations is nearly closed.
From the initial drafting phase to final approval, major regulations can take months, and in some cases years, to complete. And from this point forward, the next Congress would be able to overturn major rules passed under Obama, particularly if presumptive Republican presidential nominee Donald Trump wins the White House.
Even if a Democrat wins, experts say there’s no guarantee they’ll have the same priorities.
“There are some rules that are not controversial that risk not being picked up by the next administration,” said James Goodwin, a senior policy analyst with the Center for Progressive Reform. He said a number of rules haven’t gotten the attention they deserve, including the Environmental Protection Agency’s regulation requiring chemical plants to have risk management plans and new rules for storm water discharge.
After Democrats lost the Senate in the 2014 midterm elections, Obama vowed that he would use executive power aggressively, if needed, to enact his agenda despite Republican control of Congress.
“I’ve got a pen and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward,” Obama said in January 2014.
“So one of the things that I’m going to be talking to my Cabinet about is how do we use all the tools available to us, not just legislation, in order to advance a mission that I think unifies all Americans,” he said.
Since January 2014, the administration finalized a rule that forces employers to disclose outside consultants they hire to counter workers union organizing efforts, raised the minimum wage for federally contracted employees, issued first-ever regulations for cigars and electronic cigarettes, and completed an overhaul of the country’s food safety system.
Supporters of Obama have praised the “pen and phone” approach, calling it a necessary response to obstruction in Congress.
The next president may pursue a different set of regulations, they're just as likely to overstep their constitutional authority. Only one solution can effectively limit the power of the regulatory state: an Article V Convention of States. A Convention of States can propose constitutional amendments that limit the president's ability to legislate with his pen and his phone.