The Trump Administration’s ‘Parting Gifts’

E ach time a new party wins the White House, the administrative state changes gears. Democratic presidents try to undo everything Republicans accomplished, and vice versa. And since Congress has delegated vast swaths of policymaking to the executive branch — environmental regulations, labor rules, etc. — these changes can be immensely consequential.

A somewhat amusing side effect of this process is the tradition of “midnight regulations”: In a frantic rush between an election and a new administration from the other party, the old president and his minions rush to finalize everything they possibly can, cutting whatever corners need to be cut. This creates some extra work for the next guy to undo, which can take a while, because the official rulemaking process can be a pain. The Trump administration undertook this task with a special zeal, leaving Biden and Co. with a tangled knot of new regulations to deal with.

Here are a few fun examples.

At the Department of Health and Human Services, officials thought it should be standard practice to formally reassess all regulations every so often, and indeed that regulations should automatically die if they are not reviewed this way. It’s not a bad idea, but unfortunately they didn’t get the new procedure in place until they were on their way out the door. Fortunately, though, they finalized the rule in time for the Biden administration’s arrival. As Georgetown’s Andy Schneider summarizes, the brand-new “SUNSET” rule

requires HHS to “assess” and, if necessary, “review” almost every regulation every 10 years. The purpose of the “assessment” is to determine whether the regulation has “a significant economic impact upon a substantial number of small entities.” If it does, then the agency must conduct a “review” to determine whether the regulation should be rescinded, amended, or preserved. If a regulation is not “assessed” or, if necessary, “reviewed” every 10 years, it automatically expires. The rule gives the agency five years from enactment to complete the first cycle “assessments” and “reviews.”

Starting March 22, if this rule is still in effect by then, HHS has to actively monitor thousands of sections of the Code of Federal Regulations or risk their being invalidated.

As Schneider points out, while midnight regulations are hardly a novel development, it’s less common to make a procedural regulation this way — one that doesn’t set a specific policy but rather governs the way the agency makes policy. It’s an innovation in bureaucratic warfare.

Over at the Environmental Protection Agency, they tried a different gambit. Usually new rules don’t go into effect for 30 days or more after they’re finished, which can give the next president time to delay them while he works on undoing them. But there’s an exception available when the 30-day period would be “impracticable, unnecessary, or contrary to the public interest.” As a story from Bloomberg notes, the EPA has made at least five rules immediately effective using this excuse, including regulations covering ozone, soot, the agency’s standards for using scientific studies, and greenhouse-gas emissions for aircraft. Other agencies have been trying out this strategy as well, including for “a measure changing compliance dates for food labeling requirements . . . and rules . . . governing a carbon sequestration tax credit and civil penalties for automakers that fall short of fuel-economy requirements.”

Another example comes from the Department of Homeland Security. BuzzFeed reported last week that the agency had signed curious agreements with the states of Arizona, Louisiana, and Indiana, as well as the Rockingham County Sheriff’s Office in North Carolina. The agreements “would require the DHS to provide notice of immigration policy changes and allow the jurisdictions six months to review and submit comments before the agency moves forward with any of the proposed changes.” (The jurisdictions, in return, promise to help DHS enforce immigration law.)

Now, to be clear, it’s not obvious how big of a burden all this will really be to Biden. Trump-administration rules have often lost in court even when they weren’t put together in a big rush at the end of the administration, and if courts invalidate these actions, Biden won’t have to waste time undoing them through more formal processes. In addition, the Democrats’ winning the Senate gives them a chance to kill some new rules using the Congressional Review Act, assuming all 50 Democrats in the chamber stick together.

But say this for Trump’s minions: They found new ways to use their control of the administrative state during that crucial midnight period, not merely passing new rules but actively hamstringing their successors.

Hey, maybe this will inspire Congress to give presidents less leeway to rewrite the law and put an end to the regulatory ping-ponging that happens every time the presidency changes parties. Or maybe not.