It is not uncommon for presidents to rush through regulations and changes in their final months or even days in office. Thus, the move of President Obama to protect pristine areas from drilling is not unprecedented, particularly as the continuation of his long-standing policies on the environment. However, as I discussed yesterday on NPR, the President made a move that runs against the grain of tradition this week. Obama negated the regulations underlying the dormant National Security Entry-Exit Registration System or NSEERS program. That was not action to advance a positive policy but a purely obstructionist move targeting your successor. There was no reason to destroy the structure except to delay any effort of President-Elect Donald Trump to carry out his campaign pledges to tighten entry rules and impose greater scrutiny of people coming from Muslim countries. NSEERS would have given Trump a readily available structure and pro-immigration groups lobbied Obama to destroy the program. It was a move that was reminiscent of General William Tecumseh Sherman. General Sherman famously left a scorched earth behind his March to the Sea and Obama appears intent to leave the same charred path for his successor.
NSEERS was created after 9-11 to require registration for people coming from 24 Muslim countries. The system included port-of-entry registration and domestic registration. It was discontinued in 2011 under the Obama administration. The US-VISIT program was instituted as a replacement.
Putting the policy issues aside, the move to eradicate the dormant structure of NSEERS was a Sherman-like move to harass an opponent and slow his progress. Many presidents would likely find the move a bit too obstructionist, but there is certainly precedent for aggressive moves in the twilight of an Administration. The famous case of Marbury v. Madison is one such example. The controversy arose after Thomas Jefferson beat John Adams in 1800. Since Jefferson did not take office until March 4, 1801, the federalists moved in the lame duck session to create new judicial positions and, on March 3, Adams appointed 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801, including financier William Marbury who was appointed to the position of justice of the peace in the District of Columbia. The problem is that not all of the appointments could be delivered by John Marshall, who was acting as Secretary of State before assuming his positions as Chief Justice. When Jefferson entered office, he ordered the halt to the deliveries — leading to the litigation. Incredibly, it would be Marshall who would rule in the case even though he was involved in the underlying dispute.
The comparison to Marbury however is telling. Adams was merely using every minute of his term to pursue his policy objectives. In the NSEERS controversy, Obama is burning a structure to the ground to avoid it being used by his successor to pursue his different priorities. It is a regulatory version of the Clinton staff removing the “W”s from keyboards to harass the including Bush staff. In the end, of course, this can only delay rather than avoid the inevitable. It will force the Trump Administration into probable “notice and comment” procedures in the publication of new regulations in the federal register. It will add a political benefit for Democrats. The deal will push new regulations closer to the midterm elections and could be used to rally voters in an election where Democrats are more vulnerable than Republicans.