Trump win spurs Obama regs

Trump win spurs Obama regs
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The Obama administration will race to finalize as many regulations as possible in its final days even as President-elect Donald TrumpDonald TrumpOmar, Muslim Democrats decry Islamophobia amid death threats On The Money — Powell pivots as inflation rises Trump cheers CNN's Cuomo suspension MORE and Republicans threaten to roll them back, experts say.

A flurry of last minute rulemakings, known as midnight regulations, is common at the end of an administration. But Trump’s stunning upset over Hillary ClintonHillary Diane Rodham ClintonCountering the ongoing Republican delusion Republicans seem set to win the midterms — unless they defeat themselves Poll: Democracy is under attack, and more violence may be the future MORE has some experts bracing for more than usual as President Obama tries to shore up his legacy on key issues.


“I was thinking that with the expectation that Hillary Clinton would win, there wouldn’t be as much of a rush because there wouldn’t be a concern that the next president would do anything much different,” said Susan Dudley, director of the George Washington University Regulatory Studies Center.

“We might see more of an effort to get rules published because Trump has been quite clear about how he feels about regulations.”

The president-elect has promised to slash regulations, claiming on the campaign trail that 70 percent of those rules “can go.”

He's mapped out plans to put a moratorium on new agency regulations and repeal the Environmental Protection Agency’s Waters of the U.S. rule and Clean Power Plan.

Some say Election Day, which saw Trump win and Republicans' retain majorities in both chambers, is giving new energy to the administration's regulatory drive.

“I don’t see any reason for them to slow down,” said Sam Batkins, director of regulatory policy at the conservative American Action Forum.

But Republicans have a powerful weapon to overturn those rules. The Congressional Review Act gives Congress 60 legislative days to pass a resolution to overturn a finalized rule.

And in the upper chamber the law only requires a simple majority, not 60 votes, an added bonus for Republicans who can avoid a Democratic filibuster.

But others also say that it won't be as easy for Trump alone to overturn rules that are on the books as he claims.

“A regulation unilaterally is hard to undo even if it’s issued at the end of an administration, even if it's published,” said Dudley, a former administrator at the White House Office of Information and Regulatory Affairs. “He’d have to start over.”

Under the Administrative Procedure Act, any change to a rule has to be proposed and go through a public notice and comment period before it's finalized. The White House then has to review it and sign off. It’s a lengthy process that can often take years and any changes to existing rules could be challenged in court.

But Obama often circumvented the regulatory process, using shortcuts like guidance for agencies or executive actions, such as the ones on immigration reform. Those could be easier to undo, Dudley noted.

Undoing regulations by executive action, though, might not be a promising option for Trump.

Curt Levey, an attorney for the Committee for Justice and FreedomWorks, said it would be unconventional and controversial to remove rules through executive action.

"It wouldn't last, like all executive actions, past his presidency," he warned.

"Why do it the unconventional, controversial way when you as the president appoint heads of agencies and can instruct them to do it by way of rulemaking."

Lisa Gilbert, director of Public Citizen’s Congress Watch division, pointed to Obama's executive action that expanded overtime pay to some four million Americans. That rule, she said, still had to be carried out by the Department of Labor. 

But for now, many expect the administration to ramp up their rulemaking before the end of the year.

Batkins, who is tracking the data, is expecting the White House average of 45 rules approved every month to double.

“I can see that increasing by 50 percent all of a sudden to nearly 70 or 80 rules leaving the White House a month,” he said.

Gilbert, an advocate for public health and safety regulations, though, dismissed talk of a flurry of last-minute rulemaking.

The work required for drafting new rules makes it impossible to quickly issue them she said. Gilbert said any rules being finalized have been in the works for some time.

“We think things are far too slow,” she said.

Still any new rules, along with a host of others finalized over the summer, face the threat of being overturned under the Congressional Review Act in the new Congress.

Aiding Republicans is this year's abbreviated congressional schedule. If lawmakers are not in session for a full 60 legislative days before adjourning their final session, the clock rests and the new Congress is given 60 days to act.

A Republican bill would also allow Congress to overturn, in one vote, all rules finalized by the president in the last 60 days of the congressional session.

Obama is likely to veto the legislation, but Republicans are gearing up for their regulatory pushback.

The House Rules Committee is expected to mark up the Midnight Rules Relief Act on Monday.

This story was last updated at 4:14 p.m.