The administration views such regulations as government overreach. In recent weeks, the Environmental Protection Agency rescinded autoemission standards issued during the Obama years, and the Food and Nutrition Service is reversing Obama-era regulations that required schools to increase the volume of fruits and vegetables in school lunches. Meanwhile, the Department of Education released a final regulation that made it easier for college students to defend themselves against charges of sexual misconduct.
Last week, while protesters were rallying outside the White House, the EPA proposed another rule to change the way the agency counts the benefits associated with air pollution protections. If finalized, the rule would make it harder to justify future climate regulations.
Most of these moves follow the standard path to deregulation, which requires agencies to go through a multistep process to take existing regulations off the books. But the administration’s deregulatory push has taken an unorthodox tack as well (as The Washington Post has reported). Citing the pandemic and the associated economic emergency, President Trump has issued two executive orders that direct agencies to stop enforcing existing economic regulations, including those that require commercial truckers to take required breaks and that mandate public input on the environmental impact of new construction projects. Although these orders are theoretically temporary, Trump has directed agencies to evaluate whether they ought to be permanently rolled back.
Congress is not happy about the timing of all these changes. The chairs of 14 House committees, for example, implored the administration to freeze or slow its non-virus related regulatory activities, because the people affected by these changes don’t have the time to comment on the proposals or to meet with regulators. Twenty-one Democratic state attorneys general have made a similar appeal, and advocacy groups ranging from health-care associations to environmentalists have also asked for, at the least, an extension of deadlines for commenting on new rules.
The administration’s current deregulatory push would probably be happening even without the maelstrom of covid-19, but the virus is a convenient distraction that lets the administration pursue long-standing goals with less scrutiny, and the protests only heighten the confusion.
When federal agencies write regulations — or repeal them — they typically issue a proposal, and then seek public comment, before finalizing the policy. The feedback that agencies solicit is vital for the creation of good policy, because it gives agencies information on what about their proposals works — and, more importantly, what doesn’t. It can give constituencies an opportunity to identify unintended consequences that might only be discovered after the policy was implemented. Agencies might prefer to ignore this feedback, but they are forced to take these comments seriously, because they often form the basis for legal challenges down the line.
Now, that policy check has succumbed to the virus. The people who participate in these proceedings tend to come from interest groups, industry and academia; they give feedback as part of their jobs. But they may not be able to do so, given that their work lives — like those of so many others — have been upended. They’re juggling child care and work, and have ceased business travel.
Many organizations see the administration’s failure to postpone or delay rules unrelated to the virus as tone-deaf. In early April, for instance, the National Park Service and the Bureau of Land Management proposed questionable rules that would allow electric bikes onto public lands. Some conservationists opposed to the proposals argued that such non-urgent rules should be delayed, and the NPS should shift its focus to “critical employee and visitor safety concerns.” Yet the administration was undeterred, and the comment periods for these proposals close this week.
The campus sexual assault regulations from the Department of Education highlight another issue for parties affected by rulemaking: compliance. Those new regulations take effect in mid-August, and require colleges and universities to overhaul existing policies. The virus, however, hampers such plans, as many campuses have more immediate issues to tackle, such as deciding whether to hold fall classes in-person. (Because the rules were long in development, Education Secretary Betsy DeVos has said that higher-Ed institutions should have been prepared for rapid implementation.)
Congress serves as another check on the administration’s deregulatory work, holding hearings on high-profile agency actions and writing letters to agencies about regulations in progress. Yet Congress has partially shifted to remote work, raising new barriers to a coordinated response to the administration’s actions. Given that Congress has its hands full dealing with all manner of economic and political issues relating to covid-19, it’s clear it will be a less-active watchdog than we might hope.
General eagerness to deregulate aside, there’s another reason the administration is unlikely to heed any of the calls to slow its non-virus deregulatory work during the pandemic. A 1996 law known as the Congressional Review Act (CRA) allows Congress to turn back regulations issued by the executive branch for a 60-day window after they are finalized. It requires a presidential signature (or enough of a congressional majority to sustain a veto override), so it is most meaningful after an election where a different party assumes control of both Congress and the White House. That law was little-used until 2017, when the Republican-controlled 115th Congress summarily overturned 15 Obama-era regulations, including a Department of Interior rule that had enhanced restrictions on what coal mining companies could dump into streams and a Securities and Exchange Commission stricture that required energy companies to disclose payments made abroad. If Republicans get wiped out in the next election, a new president and Congress will almost certainly return the favor.
So the Trump administration is on the clock. A wrinkle of the CRA is that the 60-day window is calculated based on “legislative days” — or days Congress is actually in session. Calculating this window is fairly complicated. First, it relies on knowing how frequently both the House and the Senate will meet over the next several months — tricky, given that the pandemic may affect the current schedule. Second, legislative days are measured from a session’s start to its adjournment, meaning they can be longer than a calendar day. Last time around, any regulation the Obama team issued after mid-June 2016 was subject to overturn by the new Congress. This year, nobody quite knows when the CRA’s window will actually begin — and there is speculation the window has already been entered.
Virus or no virus, the shadow of the Congressional Review Act would probably have accelerated a deregulatory push. That’s problematic in itself, since rushed policymaking is often bad policymaking. But the pandemic raises concerns about the level of vetting these policies will receive to an entirely new level. Regulatory policy flies below the radar in the best of times, but this year, hasty deregulation, combined with a lack of oversight caused by the pandemic’s distractions, could be an especially dangerous recipe.