The second Trump Administration continues to pursue unilateral governance, a stance that risks undermining the durability of many of its policy shifts over time.
The second Trump Administration has moved forward with a forceful deregulation program, placing particular emphasis on environmental policy. Right from the outset, the administration aimed to reduce regulatory burdens and shrink the reach of federal agencies, especially the Environmental Protection Agency. With a few notable exceptions, these deregulatory efforts have depended on presidential unilateralism—a blend of executive orders, presidential directives, and agency actions that did not require legislative backing. In this respect, the Trump Administration has built upon—and heightened—the degree of presidential unilateralism that has become familiar in the twenty-first century.
A consequence of this regulatory strategy is that much of what the administration is achieving is unlikely to be sustainable in the long run. Executive orders can be reversed just as readily as they are issued. Deregulatory shortcuts, such as assertive claims of “good cause” to bypass the notice-and-comment process, if successful, will be available to future presidents to push policy in the opposite direction.
Those areas most likely to yield enduring changes are those in which the administration has forwent unilateral action and instead sought engagement with, or endorsement from, other branches. For example, deregulation achieved through the passage and signing of Congressional Review Act resolutions will likely be more durable than that accomplished through the administrative route. And insofar as the administration maintains that certain deregulatory steps—such as repealing the Endangered Species Act’s definition of “harm”—will endure, these moves will only be effective if the statutory interpretations they rely on are ultimately embraced by the courts.
The above, at minimum, constitutes the argument I present in “Unsustainable Presidential Administration,” my contribution to an upcoming Harvard Environmental Law Review symposium addressing environmental law in the first 18 months of the second Trump Administration. My essay is now available on SSRN and will appear in a distinguished symposium issue later this year.
Here’s the abstract:
The first Trump Administration prioritized speed and visibility over legal soundness, and its unilateral deregulation—somewhat described as “regulatory slop”—was largely undone once Trump left office. This essay argues that the second Trump Administration, though more prepared and more aggressive, has not learned this lesson: it continues to elevate executive-branch unilateralism above the slower, more deliberate work of legislative or judicial engagement. The administration’s reliance on executive orders and unilateral action has sacrificed sustainability for speed. Where the administration’s efforts are most likely to lead to lasting legal or policy changes, it relies on cooperation with other branches, such as by collaborating with Congress to pass Congressional Review Act resolutions or by prompting judicial review and endorsement of new understandings of existing environmental laws. The administration’s unilateral actions may be consequential, but they are not sustainable: lasting changes to environmental law will come only through legislation or judicial ratification, not through executive decree alone.
