Since election day, the Trump administration has completed dozens of new regulations in a final wave of rulemaking, including restrictions on access to asylum, reduced wages for guest farm workers and a rejection of stricter soot emissions limits, despite a growing body of evidence that soot pollution is contributing to premature death.
The White House made a joint effort to end the new rules before President-elect Joe Biden took office, despite President Donald Trump’s refusal to accept the election results. Once the rules are finalized and take effect, undoing them is usually a lengthy and laborious process.
The recent outbreak of “midnight rule making” – a practice common to governments on both sides – includes controversial proposals that Biden is likely to oppose. Asylum change, for example, adds new comprehensive restrictions that raise the limit for migrants who claim persecution in their own countries to an “extreme and severe nature of harm” and make it easier for immigration judges to determine what such claims are ” frivolous “and dismiss asylum applications without a hearing.
The Trump administration said the new rule, finalized on December 16, would allow the federal government to “more effectively separate unsubstantiated claims from meritorious ones,” according to a statement, thus better protecting the country’s borders.
The administration has also concluded a separate rule that shortens the deadline for submitting asylum applications and gives immigration judges greater leeway to reject evidence they consider unreliable.
Advocates for immigrants said the new rules – both scheduled to take effect before Biden’s inauguration – will have a devastating impact on asylum seekers around the world, especially those who are already in the United States and are struggling to stay.
“This means that many people fleeing violence and persecution will not be able to actually apply for asylum,” said Lindsay M. Harris, associate professor of law at Columbia University. “It will be especially difficult for asylum seekers who are in detention, given the very low levels of legal representation in detention.”
Biden promised to “end Trump’s damaging asylum policies.” But reversing many of these restrictions can take months, and possibly years, as the new government must go through the same lengthy rule-making process to undo the finalized rules, unless a court overrides them.
In contrast, rules that have not been finalized or entered into force can be suspended by an incoming president. On Wednesday, the new White House press secretary, Jen Psaki, told reporters that as soon as Biden takes office, he will issue a memo freezing all rules that did not go into effect, as previous presidents did. And executive orders can be reversed with the touch of a pen.
Biden’s transition team did not respond to a request for comment.
Since election day, the Trump administration has issued about three to four times more regulations than during other periods of Trump’s presidency – similar to the rush to create midnight rules under previous presidents, according to an analysis by Daniel Perez, senior policy analyst at the Center for Regulatory Studies at George Washington University. And there may be a final push in January to complete the rules before Biden takes office.
“As a general rule, at least as much process is needed to undo or modify a rule as to put it into effect,” said Jonathan H. Adler, professor and specialist in administrative law at Case Western Reserve University School of Law. “The government Trump is expanding this challenge for the Biden government. ”
Accelerated soot rule
With the deadline approaching, the Trump administration has also taken steps to accelerate the rule-making process and get the rules into effect more quickly. While a proposed rule is under review by the White House – necessary for rules that have a major effect on the economy, the environment or public health, among other areas – administration officials often hold meetings with outside groups to hear their comments on changes in consideration, although they are not obliged to do so.
The National Resources Defense Council, an environmental protection organization, was among the groups scheduled to meet with the White House in December to discuss their concerns about the proposed rule to regulate soot, a carbon by-product produced mainly by power plants, industrial processes and gas. motor vehicles. When soot enters the lungs and bloodstream, it can result in cancer, heart disease and other serious health problems.
The Environmental Protection Agency has proposed to maintain existing soot standards for the next five years, despite recommendations by EPA career scientists to restrict them, which scientists said would save thousands of lives each year. New research has also linked the pollutant to Covid-19’s increased risk of death.
“Rules like this impact all of us and the air we breathe,” said Emily Davis, a senior lawyer at the Defense Council for National Resources. “They should have as long and robust a comment period as possible.”
In the weeks leading up to the final rule, the White House held 16 meetings with industry, environment and public health groups to discuss it, according to federal records. But in early December, the White House decided to resign from the rest of its meetings – including the one with the Defense Council for National Resources – and completed the rule ahead of schedule, which the government described as a standard protocol.
The EPA also invoked a rarely used exemption for the rule to take effect immediately. While most rules require a 30-day or longer delay to take effect, the EPA made the changes take effect immediately, stating the need to provide “regulatory certainty as soon as possible”. The EPA used the same exemption to usher in another important rule that would limit its consideration of the benefits of future air pollution rules, as well as the first greenhouse gas standard for airplanes. Rules that have already come into effect are generally more difficult to break.
“It’s definitely unusual,” said Adler. “The Trump administration’s vision is, ‘Let’s do as much as possible and try to brake’.”
The Trump administration, industry lobbyists and allies in major coal-producing states like West Virginia celebrated the complete rule as a triumph, noting that soot levels in the U.S. have decreased by 39 percent since 2000. “We need to continue to support policies that maintain our clean air while protecting job producers in our state, ”said Patrick Morrisey, West Virginia’s attorney general, in a statement.
The EPA said in a statement that the new soot rule was sufficiently protective for public health, coming after “careful review and consideration of the latest scientific evidence available”, as well as more than 60,000 public comments on the draft rule.
Davis, however, said the White House review process should not have been interrupted, given the magnitude of the rule. “Soot pollution kills,” she said. “Every day we live with outdated and insufficient standards.”
Legal challenges
Even if they manage to cross the finish line, the most contentious rules are likely to face legal challenges, and courts have already prevented some from taking effect. This could make it easier for the new government to undo the rules it opposes, resolving court cases instead of fighting to keep them in place.
Just before Christmas, a federal court issued an injunction that prevented a new Trump rule from freezing the minimum wage for guest farmers for the next two years and creating a new standard that would cut their wages by about $ 1.68 billion in 10 years, according to the published rule.
A temporary visa program known as H-2A has exploded in growth in recent years as the number of available farm workers has declined, but it has been criticized for facilitating mistreatment for workers, who have little influence and resources when they arrive in the United States. The industry, however, has defended its labor practices and criticized the high labor costs as a major deterrent for struggling American farmers.
A few days after the November election, the government issued a rule that would freeze H-2A minimum wages until 2022 and then establish a new formula for calculating wages for guest farmers based on the previous year’s pay trends.
“It is a victory for farmers, farm workers and the American people, who depend on a vibrant agricultural sector to provide food for our families,” said John Pallasch, assistant secretary of labor, in a statement. Industry groups have also praised the move for reducing labor costs for employers.
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Defenders of rural workers condemned the new rule to impoverish vulnerable workers with H-2A who are already earning low wages, as well as domestic farm workers who will struggle to compete with cheap foreign labor. But his court case is based on allegations that the Trump administration cut corners in its final rule.
In issuing its injunction last week, a California federal court said the Trump administration’s rule “intentionally depresses and stagnates wages” for guest workers, without providing adequate justification for doing so – a procedural requirement under the Procedural Law Administrative to prevent “arbitrary and capricious” Creation of rules.
The Department of Labor appealed to the Department of Justice, which did not immediately respond to a request for comment.
As the clock progresses, the government will need to be careful to avoid further legal challenges, said Susan Dudley, who headed the White House’s regulatory affairs office under President George W. Bush and now runs the Center for Regulatory Studies.
“All administrations face pressure to complete the actions before their time runs out,” she said. “But rushed regulations that take shortcuts to procedure or do not provide a convincing justification for the selected approach are in danger of being overturned.”