Rushes out rules

Obama rushes out rules to guarantee legacy

The rush is designed to prevent a President Trump from undoing his actions.

By Timothy Noah

The Obama administration is shoveling out regulations nearly one-third faster in its final year than during the previous three — all to beat a May 23 deadline to prevent a President Donald Trump from overturning them.

A total of 195 regulations have been pushed through since Jan. 1 at an estimated cost of $69.5 billion to the nation’s businesses, according to the conservative American Action Forum. One of the most significant — a sweeping rule that will extend overtime pay to more than four million people without any input from Congress — was released Tuesday night.

“This regulatory onslaught has only gotten worse in the administration’s final months,” complained Rep. John Kline (R.-Minn.), who chairs the House committee on Education and the Workforce.

The whoosh of final rules on everything from e-cigarette use to greenhouse gas emissions exceeds the pace during the same period in the Clinton administration. The goal is to deny Trump the opportunity to kill those regulations under an expedited process should he be elected president and Congress remain in Republican control.

Obama has used his regulatory authority in the face of a hostile Congress to edge the country closer toward the reduction of greenhouse gas emissions, for instance, by readying the first methane regulation of the oil and gas industry. He’s also pushing the country leftward on a long-sought labor wish list by enacting a rule protecting workers from silica dust as well as by broadening access to overtime pay — measures that Democrats have been unable to push through a Republican-controlled Congress. The rules may seem arcane in many cases, but their impact is often large, prompting fierce (and in most instances unsuccessful) resistance from lawmakers.

Ever since the nation’s second president John Adams, lame-duck presidents have used their last days to impose their agendas on successors. But only since George W. Bush has there been a rush to complete regulations fully six months before Election Day.

Blame the Congressional Review Act. Enacted by a newly Republican Congress in 1996 as part of Newt Gingrich’s Contract With America, the CRA law gave Congress 60 legislative days after a regulation was issued to block it by using an expedited procedure.

“It’s always part of the calculation,” said Michael Hancock, former assistant administrator for policy at the Labor Department’s wage and hour division, “because it can obviously impact all of the work that’s been done on a fairly complex regulation.”

Aimed at taming the regulatory leviathan, the law proved almost entirely ineffective because presidents could — and did — routinely veto resolutions of disapproval against their own agencies’ rules. But under one circumstance, the CRA could be deadly. Late in a president’s final year, 60 legislative days (which extend much longer than calendar days) could carry over into another administration. A new president of the opposite party would be tempted to squelch a predecessor’s pet project.

That reality was brought home in March 2001, when Bush used the CRA to kill an ergonomics rule issued by Bill Clinton three months earlier. The rule, aimed at reducing repetitive-motion and other musculoskeletal hazards in the workplace, had been in the works since the presidency of Bush’s father. Declaring the rule “unduly burdensome and overly broad,” Bush sent it packing.

Bush was careful not to get caught in the same trap himself seven years later. His administration pushed through 214 rules in the first five months of his final year in office — 19 more than the Obama administration for the same period.

Estimating the deadline is necessarily inexact: In February the Congressional Research Service calculated that any rule the Obama administration finalized after May 16 might be reversed. Changes to the legislative calendar pushed the deadline back to May 23. The addition of a lame-duck session could push the deadline into June.

“You don’t know what the magic date is until the session is over,” said Hancock. “You do the best you can to project out when it’s going to carry over to the next term.”

Perhaps the most significant action undertaken by Obama’s Labor Department, the overtime rule will double (to $47,500) the threshold under which virtually all employees qualify automatically for time-and-a-half pay whenever they work more than 40 hours in any given week.

The regulation is expected to increase the number of workers eligible for overtime pay by more than four million by the Labor Department’s reckoning; the left-leaning Economic Policy Institute calculates the number affected at more than 12 million. These workers will receive either wage hikes or reduced hours (itself a kind of raise when wages remain constant).

EPI Vice President Ross Eisenbrey says it's “a significant step forward in the effort to boost wages for working people,” but Thomas Donohue, president of the U.S. Chamber of Commerce, calls it “a ham-handed effort to impose its will on America’s job creators” that will “mean fewer opportunities for growth.”

Two other controversial rules that the Labor Department has already pushed out in advance of the Congressional Review Act deadline concern pensions and the mineral quartz, an important industrial material commonly used in construction and other industries.

The so-called “fiduciary” or “conflict-of-interest” rule, released in early April, requires brokers who advise clients on their retirement accounts to consider only their clients’ best financial interest. That’s a standard most investors assumed their brokers were following all along, but in fact brokers were previously permitted to modify their advice according to the availability of certain brokerage fees and commissions. The final version of the rule was altered to allow brokerage fees under certain circumstances, provided the broker made certain disclosures to the customer. According to the Labor Department, the cost of complying with the fiduciary rule will approach $2 billion per year, but the benefits to investors will exceed $3 billion.

Within a month of the final rule’s announcement the House of Representatives voted along party lines, 234 to 183, to block it under the CRA. A resolution was also introduced in the Senate by Republican Sens. Johnny Isakson of Georgia, Lamar Alexander of Tennessee and Mike Enzi of Wyoming. But Obama says he’ll veto it, underscoring the futility of the CRA when a regulation is finalized outside the 60-legislative-day window. To prevail, Congress would have to override his veto, and the votes just aren’t there.

The Labor Department’s silica rule, which affects primarily the construction industry, reduced the allowable exposure limit to silica dust to a level first recommended by the Centers for Disease Control in 1974. The very ubiquity of silica — better known as quartz, it constitutes 12 percent of the earth’s crust — made it exceptionally difficult to regulate, but silica’s well-documented dire health effects drove the effort. (Silicosis has killed more than 2,000 Americans since the start of the 21st century.) When the final rule was released in late March it satisfied neither business groups, which called the Labor Department’s $1 billion estimate of compliance costs too low, nor labor groups which said the exposure limit was still too high. Both sides have challenged the final rule in court.

Another regulation that satisfied neither pro-regulatory groups nor the antis was the e-cigarette rule that the Food and Drug Administration finalized earlier this month. The rule, which would ban minors from “vaping,” would cost the private sector $35 to $75 million, according to the administration. Compared to the Labor Department rules, that’s a modest price tag, but minors are thought to represent a large portion of the current market; according to the Centers for Disease Control, in 2015 the number of high schoolers and middle schoolers who vaped was three million.

Industry advocates said the rule would put much of the e-cigarette industry at risk. It would “yank responsibly manufactured vapor products from the hands of adult smokers and replace them with the tobacco cigarettes they had been trying to give up,” according to Tony Abboud, national legislative director for the Vapor Technology Association. Meanwhile the Center for Tobacco-Free Kids, an anti-smoking nonprofit, thought the rule didn’t do enough to limit the marketing of e-cigarettes to minors. “It does nothing to restrict the irresponsible marketing of e-cigarettes or the use of sweet e-cigarette flavors such as gummy bear and cotton candy,” said the group’s president, Matthew Myers, “despite the FDA’s own data showing that flavors play a major role in the skyrocketing youth use of e-cigarettes.”

The Transportation Department, meanwhile, clarified in March that e-cigarettes were covered by its smoking ban on airplanes. At the prompting of GOP Rep. Duncan Hunter, however, it did not extend the ban to medical devices such as nebulizers, which allow sufferers of respiratory diseases to inhale medication in aerosol form. Hunter is himself a vaper, and demonstrated its use during a February hearing on the rule.

Trump has declared global warming to be “bullshit,” and recently asked Rep. Kevin Cramer (R.-N.D.), a climate-change skeptic, to advise his campaign. That’s reason enough for the Environmental Protection Agency to hustle out this month its first methane regulation for the oil and gas industry, a follow-through on Obama’s plan to cut the U.S. emissions of the potent greenhouse gas by 45 percent over the next decade.

The regulations are expected to be rolled out in tranches, with the first set confined to methane emissions from new or modified drilling oil and gas drilling sites. The industry opposed these even though it is expected to have little difficulty meeting them — and even though it may even benefit economically from the regulation. Methane is the main component of natural gas, so leaks are essentially money escaping into the air.

Oil and gas producers are more worried about regulations that EPA has said it would like to start on, forcing the companies to upgrade the vast network of existing gas wells, lines and processing plants. But these haven’t even been proposed yet, making them easy to shred should a President Trump so choose.