Obama’s agencies push flurry of ‘midnight’ actions
Federal agencies are rushing out a final volley of executive actions in the last two months of Barack Obama’s presidency, despite warnings from Republicans in Congress and the reality that Donald Trump will have the power to erase much of their handiwork after Jan. 20.
Regulations on commodities speculation, air pollution from the oil industry, doctors’ Medicare drug payments and high-skilled immigrant workers are among the rules moving through the pipeline as Obama’s administration grasps at one last chance to cement his legacy. So are regulations tightening states’ oversight of online colleges and protecting funding for Planned Parenthood.
Also moving ahead are negotiations on an investment treaty with China and decisions by the Education Department on whether to offer debt relief to students at defunct for-profit colleges. The Department of Transportation may also go ahead with a ban on cellphone calls on commercial flights and a rule requiring that most freight trains have at least two crew members on duty.
Some agencies are pulling back, fearful that Trump and the GOP-led Congress will use a seldom-invoked legislative tool to permanently wipe out their 11th-hour regulations. For example, the Interior Department has failed to release a long-awaited rule to protect streams from coal mining pollution — and indications are it might never issue it.
But other agencies have signaled full steam ahead despite the threat of Republicans consigning their work to oblivion, in a dynamic that will be crucial to deciding how much of Obama’s legacy survives the ascendant Trump era.
“As I’ve mentioned to you before, we’re running — not walking — through the finish line of President Obama’s presidency,” Environmental Protection Agency Administrator Gina McCarthy wrote agency employees the day after the Nov. 8 election. “Thank you for taking that run with me. I’m looking forward to all the progress that still lies ahead.”
As many as 98 final regulations under review at the White House as of Nov. 15 could be implemented before Trump takes office. Seventeen regulations awaiting final approval are considered “economically significant,” with an estimated economic impact of at least $100 million a year.
Miffed congressional leaders are warning the agencies to halt their work on so-called midnight regulations, specifically objecting to Obama’s call earlier this year for “audacious executive action.” In a letter to agency heads on Nov. 15, House Majority Leader Kevin McCarthy (R-Calif.) and every House committee chairman cautioned them “against finalizing pending rules or regulations in the Administration’s last days.”
“Should you ignore this counsel, please be aware that we will work with our colleagues to ensure that Congress scrutinizes your actions — and, if appropriate, overturns them.”
Trump has promised to wipe out as much of Obama’s regulatory agenda as he can, saying he will cancel “all illegal and overreaching executive orders” and eliminate “every wasteful and unnecessary regulation which kills jobs.”
One powerful weapon at Republicans’ disposal is the Congressional Review Act, a 1996 law that essentially allows lawmakers and the president to impose a death penalty on regulations they oppose. Come January, Congress can use the law to repeal any rule that an agency finished after this past May 30, using simple-majority votes — and afterward, agencies will be forbidden to enact any regulation that is “substantially the same.”
Republicans are seeking to make that tool even more powerful by pushing legislation allowing Congress to repeal bunches of regulations en masse instead of one at a time. Some GOP lawmakers are compiling lists of 100 regulations they’d like to kill in the first 100 days, POLITICO reported last week — lists that would include already-completed rules as well as those Obama’s agencies are completing in their year-end sprint.
Other rules may fall victim to court challenges, such as the Obama administration overtime regulation — set to take effect Dec. 1 — that a judge in Texas blocked on Tuesday. And Trump’s administration may decide not to defend them.
Despite those threats, agencies are pushing ahead.
In one effort that seems especially doomed, health officials are scrambling to finish rules designed to further entrench Obamacare, even as Republicans plot to repeal the entire program. Just two days after voters swept Trump into power, the administration proposed rules for the 2018 version of the state insurance marketplaces.
The Department of Health and Human Services is also expected to follow through on controversial changes to the way doctors and hospitals are paid for administering drugs under Medicare Part B, an effort that both Republicans and Democrats have criticized. It’s also pushing an overhaul of the way it pays doctors who treat Medicare patients, moving toward a system that better evaluates the quality of care they provide — although these changes have bipartisan support and could end up surviving.
Separately, HHS may still move to complete a rule it proposed in September to stop states from defunding Planned Parenthood, even though axing the nonprofit’s funding will only gain momentum with the GOP takeover.
Also likely on the Republican hit list is an Obama administration effort to ease the flow of high-skilled immigrant workers into the U.S.
A final rule designed to help employers to sponsor and retain these workers would limit the grounds under which a visa petition can be revoked and would establish a one-time, 60-day grace period for certain high-skilled immigrants who change jobs. Under the regulation, immigrants with certain employment visas who lose their jobs would not have an approved green card petition automatically revoked. The provision applies to visa holders who are unable to obtain a green card due to immigrant visa backlogs.
The rule is due to take effect Jan. 17.
The change “would allow these high-skilled workers to more readily pursue new employment,” the measure reads. But it would hurt American workers, argued David North, a fellow at the anti-immigration Center for Immigration Studies. “There are no benefits for any resident workers who have been shouldered aside by the H-1B workers in these regs,” he said in a statement.
Also in the agencies’ year-end action plans:
Energy
Immediately after the election, EPA took preliminary steps toward regulating methane releases from oil and natural gas production — even though Trump’s win means that the overall effort to rein in the potent greenhouse gas is most likely doomed. In addition, the Fish and Wildlife Service released the final version of updated rules governing almost 1,700 oil and gas wells inside national wildlife refuges, and the Interior Department’s Bureau of Land Management released a major rule on leases for wind and solar projects on federal land.
Interior also released a final rule to limit fracking-related methane pollution on public lands a week after the election, prompting oil industry groups to file a lawsuit within minutes. And by Dec. 1, EPA faces a court-ordered deadline to propose a rule requiring companies that mine for minerals like gold and silver to demonstrate they can afford to clean up any pollution they cause. EPA is also awaiting White House approval for a rule governing emergency preparedness at chemical plants, in response to incidents such as a deadly 2013 fertilizer plant explosion in West, Texas.
Less likely to emerge by year-end is a long-in-the-works Interior Department effort to update the so-called stream protection rule, a 1983 coal mining regulation designed to prevent water pollution from coal mining. Though the administration appears to be on the cusp of finishing the update, fierce opposition from Trump and GOP leaders means it would be a certain target for a Congressional Review Act repeal.
Whether Congress repeals the rule, or Interior never releases it, coal magnate and Trump backer Robert Murray said he’s confident the regulation will not survive.
“It’s gone,” he told POLITICO. “Hillary’s gone. It’s gone. Obama, the greatest destroyer in America, will soon be gone. There was never any need for this rule. It was an attempt to close underground coal mining. There is no environmental benefit from that rule. Never was.”
Education
The Education Department is finishing a long-awaited rule that would effectively force state regulators to step up their oversight of colleges that operate online courses in their states, even if they aren’t physically located there. But the regulation, which Republicans and many for-profit schools have criticized, won’t take effect until July 2018, which gives Trump’s administration plenty of time to delay or repeal it.
The department also still has to resolve an appeal by a college accreditor whose recognition was terminated by the feds amid concerns that it was approving too many dishonest for-profit schools. And the administration is rushing to fully implement one of its signature higher-education policy achievements: a rule that aims to cut off federal funding to college programs whose students end up with high loan debt relative to their income.
In addition, the Education Department is sorting through a backlog of tens of thousands of debt relief claims from students at ITT Tech and Corinthian Colleges, two troubled for-profit colleges that folded in recent years as the administration cracked down on allegations of fraud. The department previously said it expects to resolve the more than 82,000 pending claims by this spring — but given the Republican opposition to the administration’s debt-relief efforts, the department will face pressure to speed up the pace.
The department still has to finish a number of rules under the K-12 education law that passed last year, which shifted much power from the federal government back to states and school districts. Two of the most controversial regulations include a rule holding schools and school districts accountable for student learning and progress, and a rule that aims to ensure poor and minority students get their fair share of state and local education funding.
Financial regulations
After years of debate, the Commodity Futures Trading Commission is striving to complete a rule on so-called position limits, a regulation that would place curbs on commodities trading by some investors to discourage speculation. But both Democratic and Republican former commissioners questioned whether the rule would survive after Trump names a new chairman to replace Timothy Massad, whose term ends in April.
Meanwhile, the Consumer Financial Protection Bureau is under pressure from the Credit Union National Association and other groups to freeze its rulemaking for now, including a controversial proposal to curb payday lending and another to limit the use of mandatory arbitration clauses that prevent consumers from taking companies to court. Both rules won’t be finished until at least next year.
Workplace safety
The Occupational Safety and Health Administration is expected to issue its final rule before the end of the year to decrease occupational exposure limits for beryllium, a light metal used in the aerospace and electronics industries that poses risks for lung cancer when inhaled. The agency is also expected to finish a proposed rule to streamline standards for fall protection and working surfaces.
Transportation
The Obama administration is likely to take action before year’s end on rules and guidance that would ease the adoption of “connected” technologies, which allow cars to communicate with each other and with features such as traffic lights. The rules are also crucial to the eventual widespread adoption of self-driving cars.
Also on deck for possible movement in the next two months is a proposed rule prohibiting cellphone calls on commercial flights — a ban widely popular with the flying public, but one on which Trump’s position is unknown.
Other candidates for quick action may include a Federal Railroad Administration mandate for two-person crews on most trains — a move unions have cheered amid freight railroad opposition — and a revised regulation to forbid the transport of lithium ion batteries as cargo on passenger planes.
Trade
Trump’s fierce denunciations of “stupid” trade deals would bode ill for any 11th-hour agreements to ease international commerce. But that’s not deterring the Office of the U.S. Trade Representative, which has been pushing to wrap up a bilateral investment treaty with China before leaving office.
The agreement could open China’s market to more U.S. investment by easing a number of restrictions while reassuring Beijing that its companies won’t face discrimination in the United States.
“Those conversations are ongoing,” Trade Representative Michael Froman recently told POLITICO. “I think it’s important that it be a high-standard agreement that really reforms and opens up the Chinese economy and creates real disciplines to address the kind of problems our companies have had in that market. Again, we’ve made progress, but we’re not there yet.”
If a deal is reached, it would require ratification by two-thirds of the Senate, and it appears unlikely that Trump would be inclined to push for a quick vote. However, supporters hope he could warm to the initiative later in his administration.
As to other trade negotiations, only one has a realistic shot at being concluded this year: an environmental agreement that aims to eliminate tariffs on about 300 “green” goods. Working alongside 17 other members of the World Trade Organization, including China and the European Union, the U.S. trade office hopes to finish the negotiations at a concluding ministers’ meeting set for Dec. 3-4 in Geneva.
Assuming the talks wrap up as planned, the question becomes whether the Obama administration could implement the environmental deal itself as an executive agreement, or whether Congress would have to vote on it. House Ways and Means Chairman Kevin Brady (R-Texas) said it will depend on whether the final agreement changes U.S. law. If it does, the deal would have to be submitted to Congress.