stop and are preparing to repeal those regulations en masse.
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
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
“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
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,
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
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
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:
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.”
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.
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
Meanwhile, the Consumer Financial Protection Bureau is under pressure
from the Credit Union National Association and other groups to freeze
its rule making 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.
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.
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
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
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
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.
Andrew Restuccia, Michael Stratford, Caitlin Emma, Patrick
Temple-West, Lauren Gardner, Doug Palmer, Adam Cancryn, Cogan Schneier
and Ted Hesson contributed to this report.