Since election day, the Trump administration has completed dozens of new regulations in a final wave of rule-making, including restrictions on asylum access, reduced wages for gas workers and a rejection of stricter soot limits, despite a growing body of evidence. that soot pollution contributes to premature death.
The White House has made a concerted effort to complete new rules ahead of President Joe Biden’s election, despite President Donald Trump’s constant refusal to accept the election results. Once rules are finalized and come into force, it is usually a time-consuming and labor-intensive process to undo them.
The recent battle with ‘midnight rule’ – a practice common to both parties’ governments – contains controversial proposals against which Biden is likely to take action. The change in asylum, for example, adds comprehensive new restrictions that increase the threshold for migrants claiming persecution in their own countries to an ‘extreme and serious nature of harm’ and make it easier for immigration judges to determine that such claims’ frivolous’ is. and to reject asylum applications without trial.
The Trump administration said the new rule, passed on Dec. 16, would allow the federal government to “separate landless claims more effectively from deserving claims,” according to a statement, thus better securing national borders.
The administration has also introduced a separate rule that shortens the deadline for submitting asylum applications and gives immigration judges more leeway to reject evidence they do not consider credible.
Immigrant advocates have said the new rules – both planned before Biden’s inauguration – will have a devastating impact on asylum seekers from around the world, especially those already in the US and fighting to stay.
“This means that many people fleeing violence and persecution will not be able to apply for asylum,” said Lindsay M. Harris, an associate professor of law at Columbia University. “This will be especially challenging for asylum seekers who are in detention, given the very low levels of legal representation in detention.”
Biden has vowed to end ‘Trump’s detrimental asylum policy’. ‘But removing many of these restrictions could take months and possibly years, as the new government will have to go through the same lengthy settlement process to undo the final rules, unless a court violates them.
In contrast, rules that have not yet been finalized or entered into force can be suspended by an incoming president. On Wednesday, White House incoming press secretary Jen Psaki told reporters that once Biden was sworn in, he would issue a memorandum freezing all rules that were not in force, as previous presidents had done. And executive commands can be reversed with a brush.
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 as many new regulations as during other periods of Trump’s presidency – similar to the rush of midnight rule under previous presidents, according to an analysis by Daniel Perez, senior policy analyst at George Washington University’s Regulatory Studies Center. And there may be one last push in January to complete rules before Biden’s inauguration.
“As a general rule, it is necessary to undo or change a rule rather than to put the rule in place,” said Jonathan H. Adler, a professor and an administrative expert at Case Western Reserve University School. or Law. “The Trump administration is increasing the challenge for the Biden government.”
Speedway accelerates
With the impending deadline, the Trump administration has also taken measures to speed up the rule-making process and enforce rules faster. While reviewing a proposed rule under the White House – which is necessary, among other things, for rules that have a major impact on the economy, the environment or public health – administrative officials hold regular meetings with stakeholders with outside groups to hear their feedback on the changes being considered, although not expected.
The National Resources Defense Council, an organization for environmental promotion, was among the groups that would meet with the White House in December to address its concerns about the proposed rule for regulating soot, a carbon by-product mainly used by power plants, industrial processes and gas- produced, to discuss. powered vehicles. When soot enters the lungs and bloodstream, it can lead to cancer, heart disease and other serious health problems.
The Environmental Protection Agency has proposed maintaining the existing soot standards for the next five years, despite recommendations from EPA scientists to tighten them, which scientists say would save thousands of lives a year. New research has also linked the pollution to the increased risk of death due to Covid-19.
“Rules like these affect us all and the air we breathe,” said Emily Davis, a senior advocate for the National Resources Defense Council. “They should have as large and robust a comment period as possible.”
In the weeks before the final rule, the White House held 16 meetings with industry, environmental and public health groups to discuss it, according to federal records. But in early December, the White House decided to forgo the rest of its meetings – including the meeting with the National Resources Defense Council – and completed the rule ahead of time, describing the administration as standard protocol.
The EPA also used a rare exemption to enforce the rule immediately. While most rules require a waiting period of 30 days or longer to take effect, the EPA made the amendments effective immediately, claiming that it was necessary to provide “regulatory certainty as soon as possible”. The EPA used the same exemption to introduce another main rule that would limit the consideration of the benefits of future air pollution rules, as well as the first greenhouse gas standard for aircraft. Rules that have already taken effect are usually harder to undo.
“It’s definitely unusual,” Adler said. “The opinion of the Trump administration is, ‘Let’s do as much as we can and try to lock it up.’
The Trump administration, industry lobbyists, and allies in major coal-producing states like West Virginia have celebrated complete rule as a triumph, noting that soot levels in the U.S. have fallen by 39 percent since 2000. “We must continue to support policies that keep our air clean while protecting the job producers in our state,” said West Virginia Attorney General Patrick Morrisey in a statement.
The EPA said in a statement that the new route rule is sufficiently protective of public health, after a careful review and consideration of the most recent available scientific evidence, as well as more than 60,000 public comments on the draft rule.
However, Davis said the White House review process should not be curtailed, given the scope of the rule. “Soot pollution kills,” she said. “We live every day with outdated and inadequate standards.”
Legal challenges
Even if they cross the finish line, the most controversial rules are likely to face legal challenges, and the courts have already barred some from taking effect. This can make it easier for the incoming government to undo the rules they oppose by settling the court cases rather than fighting to keep them in place.
Shortly before Christmas, a federal court issued an order preventing a new Trump rule from freezing the minimum wage for gas farm workers for the next two years and creating a new standard that would increase their wages by an estimated $ 1.68 billion will decrease. the published rule.
A temporary visa program, known as H-2A, has increased in growth over the past few years as the number of available farm workers has declined, but it has come under fire to facilitate the abuse of workers, who have little leverage and once they are in arriving in the USA. Industry groups, however, defended their labor practices and criticized the high labor costs as a major obstacle for struggling American farmers.
A few days after the November election, the government published a rule that would freeze H-2A minimum wages until 2022 and then establish a new formula for calculating wages for gas workers based on the compensation trends of the previous year.
“This is a victory for farmers, agricultural workers and the American people who rely on a vibrant agricultural sector to provide food for our families,” John Pallasch, an assistant secretary of labor, said in a statement. Industry groups also praised the move to reduce labor costs for employers.
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Advocates for farm workers have rejected the new rule for impoverishing vulnerable H-2A employees who are already earning low wages, as well as domestic farm workers struggling to compete with cheap foreign labor. But their court case is based on allegations that the Trump administration cut its final rule.
A federal court in California last week issued an order that the Trump administration’s government “deliberately suppresses and stagnate wages” of gas workers without providing sufficient reasons for doing so – a procedural requirement under the Administrative Procedure Act to ” arbitrary and fickle to prevent “” Regulation.
The Department of Labor adjourned the Department of Justice, which did not immediately respond to a request for comment.
As the clock ticks, the government will have to take care to avoid further court challenges, led Susan Dudley, who led the White House president under President George W. Bush, and now heads the Regulatory Studies Center.
“There is pressure on all administrations to complete actions before they run out of time,” she said. “But quick regulations that use procedural shortcuts or do not provide compelling justification for the selected approach run the chance to reverse.”