Barack Obama is illegally rushing through a final set of executive actions in his final two months as President, despite the fact that Congress blocked his ability to pass any new laws or policies.
Federal agencies are pushing through new regulations on commodities speculation, air pollution from the oil industry, doctors’ Medicare drug payments and high-skilled immigrant workers, in order to cement Obama’s legacy. This is all despite the fact that Trump will probably reverse all new legislation created by the Obama administration.
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 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 last week, 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.”