As the future Trump administration begins to take shape, the Obama White House is engaged in a frenzied, final effort to put in place as many new rules and regulations as time allows. The goal: to complete several major regulations and other executive actions before President Obama leaves office on Jan. 20.
Under consideration are executive actions that would affect land use, private-sector pay and the workplace. They include measures to protect large areas of public land in the American West, bolster energy efficiency for industrial appliances and give greater power to state and local governments to offer retirement savings plans for private-sector workers. The new rules also claw back Wall Street bonuses from executives whose actions hurt their firms, and strengthen standards designed to reduce falls in the workplace.
“This administration has been particularly aggressive in the last year to 18 months in finalizing its particular regulatory priorities,” said Rosario Palmieri, vice president of labor, legal and regulatory policy at the National Association of Manufacturers. In the past several months, most people in Washington were “focused on the election,” he added. “We spend a lot of time focused on regulation.”
While Republicans are already warning that they will reverse some of the rules Obama will issue during the last months of his presidency, White House officials are determined to move ahead, reasoning that having more rules in place will force the new administration to choose which ones are worth the time and effort of reversal.
A GOP Senate leadership aide, who spoke on the condition of anonymity to discuss a process that is still underway, said every committee is working to identify what rules under its jurisdiction might be reversed. Given the fact that each rule reversal takes up 10 hours of floor time in the Senate and that senators must also confirm key political nominees and pass a budget, the aide estimated that Congress was likely to overturn between five and seven of Obama’s last rules.
For the administration, that means full speed ahead.
In recent weeks, White House Domestic Policy Council Director Cecilia Muñoz says she has been directing her staff to get flu shots and to take their vitamins: “The schedule is such that if we have anybody get sick, it’s not clear that we can meet our deadlines.” Muñoz said.
On Monday, Muñoz’s team finalized a rule to evaluate whether schools were succeeding or failing under the sweeping Every Student Succeeds Act (ESSA) passed by Congress a year ago.
The rule requires that if schools fail to ensure that 95 percent of their students take required annual tests, states must take action against them. The ESSA replaced the controversial No Child Left Behind Act, the centerpiece of President George W. Bush’s education policy. When Obama signed the new bill last December, he referred to it as an early Christmas present: “After more than 10 years, members of Congress from both parties have come together to revise our national education law. A Christmas miracle,” he said.
But the administration’s interpretation of the new law has been controversial in its own right. Some have said that even with the added flexibility, it is too punitive.
Sen. Lamar Alexander (R-Tenn.), who co-authored the bill and criticized an earlier version of the rule for being overly prescriptive, said he will scrutinize both that regulation and a pending one that will dictate how school districts spend roughly $15 billion to aid poor students. He is worried that the new rule will not solve his problems with the bill.
“They run the risk of turning a Christmas miracle, as he called it last year, into a lump of coal,” Alexander said in an interview.
Speaking to reporters recently, Obama said that he recognized that when Donald Trump takes office and a new, GOP-controlled House and Senate are sworn in next year, “they will have the option of trying to undo some of those rules and regulations that we’ve put in place. And that’s their prerogative. That’s part of how democracy works. But I feel very strongly these are the right things to do, and I’m going to make sure I do them.”
And he rebuffed those Republicans who suggest he should hold off on any unfinished business: “I think their general approach seems to be that probably two days after my reelection, I should stop until the next election. I don’t think that that’s what the Constitution calls for.”
Even before this final flurry of activity, Obama will already have enacted nearly 56 percent more economically significant rules by Nov. 30 than George W. Bush did during his entire two terms, according to data from Daniel Pérez, a policy analyst at the Regulatory Studies Center at George Washington University. An “economically significant” rule is defined as one that produces at least $100 million worth of economic impact.
The final months of any administration usually bring a significant uptick in the completion of significant rules. Bill Clinton finalized 41 during his last four months in office, according to Pérez’s analysis, while Bush completed 48 — or nearly 10 percent of his total regulatory output over two terms — during that same period.
After the Interior Department finalized rules last month aimed at curbing methane emissions from oil and gas operations on federal land, Sen. John Barrasso (R-Wyo.) warned that Congress was prepared to pass legislation under the Congressional Review Act that would negate that regulation and others. That 20-year-old law, which has been used only once to overturn a federal rule, allows the House and Senate to eliminate a regulation within 60 legislative days of its passage by a simple majority vote if the president signs the bill.
“Now, I feel assured that President Trump will sign those things, to reverse some of these late regulations coming out by the Obama administration,” Barrasso said. “And we plan to use that technique vigorously in the next administration.”
One potentially vulnerable rule reduces greenhouse gas emissions from heavy-duty trucks and tractor-trailers, which was finalized in August and is estimated to cut 1.1 billion tons of carbon dioxide emissions over the lifetime of the regulated vehicles. Dave Cooke, a senior vehicles analyst at the Union of Concerned Scientists, said he hopes the rule stays in place because most of the affected manufacturers support it.
“This is an instance where these companies aren’t going to want their regulations messed with,” Cooke said.
If Congress does reverse a rule, the law says that the administration cannot reissue it “in substantially the same form.”
“It’s a very blunt tool,” Pérez said. “It’s not a hammer; it’s a sledgehammer.”
While Republicans will have the votes to unravel several of these policies, overturning many of them will still involve a protracted regulatory and, in some cases, legal process. This, in part, helps explain why White House and agency staffers are so diligently pressing ahead with their remaining business.
And the prospect of unified Republican control next year, according to several individuals working on these issues inside the administration and out, has only intensified the White House’s push to finalize key executive actions.
Last December, Howard Shelanski, who heads the Office of Informational and Regulatory Affairs (OIRA), issued a memo warning that “agencies should strive to complete their highest priority rulemakings by the summer of 2016 to avoid an end-of-year scramble.”
To some extent, the administration has succeeded in clearing out its regulatory cupboard. The overall number of rules actively under consideration is the lowest since at least the spring of 2006, according to OIRA, and is 15 percent lower than at the end of the last administration.
And a number of significant regulations could still be issued before Trump takes office. Business groups are worried about several, including an Environmental Protection Agency update of standards aimed at preventing accidental chemical releases, an Interior Department stream-
protection rule and revision of workplace standards affecting how workers shut off a complicated piece of machinery.
The Energy Department is working to finalize nearly a dozen separate efficiency rules that will affect equipment including furnaces, commercial boilers and portable air conditioners. According to the Natural Resources Defense Council (NRDC), the energy saved over the lifetime of these products would be equal to roughly one-fifth of the total energy consumed by the United States in a single year.
Palmieri said that in regard to new rules such as tighter energy efficiency standards, many manufacturers “are extraordinarily concerned about what it means, and what they have to do.”
But David Goldston, NRDC’s director of government affairs, said the administration has built “the strongest and most detailed record possible on why” many of these rules “are needed.” Critics might call them midnight rules, he added, but “it becomes midnight because you’ve gone through the other 24 hours.”
The administration’s opponents have gotten federal courts to temporarily block a couple of Labor Department rules in recent weeks, including one making full-time employees earning up to $47,476 annually eligible for overtime pay and one making it easier for agencies to deny federal contracts to firms with labor-law violations.
While some of these disputes may get resolved in court, analysts predict the Congressional Review Act may serve as the main vehicle for reversing Obama’s last regulations. Rohit Kumar, a principal at PricewaterhouseCoopers LLP who served as a top aide to Senate Majority Leader Mitch McConnell (R-Ky.), said that “anything in the areas of tax, financial services, labor or environment” could be a target for the new Congress.
Administration allies are already gearing up for the battles they will face next year. Jamie Williams, president of the Wilderness Society, said the measures — whether they promote renewable energy development or protections for tribal sites on public lands — “are all things we’re prepared to defend going into the new administration.”
In the meantime, Muñoz is hard at work. She has a detailed, color-coded tracker for education regulations. It is printed on 11x17 paper so it can all fit, and she knows she has only so much time.
“Obviously, we have a hard stop,” she said. “We are going to make it to the finish line.”