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How the Trump administration's 'midnight rule-making' could leave a big mark on government

The new rules are "like booby traps" for the incoming Biden administration, a liberal policy analyst said. “You have to find all of them and disarm them.”
Image: Donald Trump and Joe Biden peek out over a purple White House in shadow at night.
There's a longstanding tradition of presidents from both parties enacting a final burst of regulations in the weeks before they leave office. Chelsea Stahl / NBC News

While President Donald Trump continues to deny the results of the election, his administration is beginning to press forward to cement new regulations and other policy changes before President-elect Joe Biden’s inauguration — rules that will be challenging to undo once they are finalized.

Three days after the election, the Department of Agriculture sent a proposal to the White House that would allow poultry plants to increase their line speeds — a move that the Obama administration had previously rejected for fear of endangering meatpacking workers.

The proposal is among the 145 rules that the White House’s Office of Management and Budget is currently evaluating as a key step in the formal rule-making process for major regulations. Other significant regulations — defined as having a large impact on the economy, the environment, public health and safety, or state and local governments — could come under White House review in the coming days and could potentially be completed before Trump leaves office.

While it’s not likely that all of these draft rules will be finalized before Trump's term ends, both critics and supporters of the administration say they expect a final burst of regulations to be finalized in the weeks before Jan. 20, as presidents from both parties have done since the Carter administration.

“They’re running up against the clock,” said Nicolas Loris, an economist who focuses on energy and the environment at the Heritage Foundation, a conservative think tank. “They need to finish under deadline, but also make sure they cross their t’s and dot their i’s, so they can survive any legal challenges.”

The rules under development include policies that the incoming Biden administration would probably oppose, such as new caps on the length of foreign student visas; restrictions on the Environmental Protection Agency’s use of scientific research; limits on the EPA’s consideration of the benefits of regulating air pollutants; and a change that would make it easier for companies to treat workers as independent contractors, rather than employees with more robust wage protections.

“They’re clearly racing,” said Deborah Berkowitz of the National Employment Law Project, a research and worker protection advocacy group, who says that increasing line speeds in poultry plants will create unsafe working conditions. “The Trump administration has decided to appease the poultry industry. And they’re doing it at the last minute, very quickly.”

The White House did not respond to a request for comment. But the Department of Agriculture denied that it was rushing new rules out the door, as the proposals now under review have been publicly in the works for years.

“The agency has stated over and over again that a poultry line speed proposed rule is coming,” the USDA said in a statement, pointing to the administration’s previous effort to grant individual waivers for line speed increases. “To frame this as ‘midnight rule-making’ is untrue and absurd.”

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The poultry industry — which has been pushing for line speed increases since the beginning of the Trump administration — describes the latest development as the culmination of a decades-long process, stretching back to a pilot program under the Clinton administration.

“This is not a political issue,” said Tom Super, a spokesman for the National Chicken Council, which represents poultry plants.

While most executive orders can be quickly reversed by the stroke of a pen — as Biden has already vowed to do — completed regulations are significantly harder to dislodge. Once a rule is officially published in the Federal Register, it usually requires either a court decision or the same laborious rule-making process to reverse.

Congress could potentially undo regulations faster by using the Congressional Review Act — as Republican legislators did to reverse a slew of Obama-era rules at the beginning of Trump’s term. But that would be highly unlikely if Republicans retain control of the Senate after Jan. 5, when two runoff elections are scheduled in Georgia.

“It creates a big hurdle for the next administration to overcome,” said Shev Dalal-Dheini, director of government relations for the American Immigration Lawyers Association. “Even if it hasn’t taken effect, it becomes a lot harder to overturn a regulation once it’s been published.”

“These are like booby traps,” said James Goodwin, a policy analyst for the Center for Progressive Reform, a liberal advocacy group. “You have to find all of them and disarm them, and you’re not advancing your own agenda.”

Jack Beermann, a professor and administrative law expert at Boston University, believes it’s natural for rule-making to speed up toward the end of an administration, especially under a one-term president.

“People tend to think of it as nefarious, but in most administrations, the vast majority of these rules are routine — people tend to work to deadline,” Beermann said. But some are more contentious, such as complex environmental or worker safety rules implemented at the end of a president’s term, he added. When President Barack Obama issued a flurry of such rules after the 2016 election, Republicans immediately vowed to repeal many of them through the Congressional Review Act — and succeeded in doing so once Trump took office.

The rules currently under White House review include some proposals with broad bipartisan support, such a new requirement for all federally subsidized housing to have carbon monoxide detectors. The Department of Housing and Urban Development announced in April 2019 that it would draft the rule following an NBC News investigation on carbon monoxide deaths in public housing.

Administration officials stressed that they were following the normal rule-making process, which by law requires proposed rules to be open for public comment and for the agency to respond to those comments before moving forward. “It is untrue and ridiculous that any rules or regulations published at any time are not open for public scrutiny,” the USDA said in a statement.

While there are steps that the executive branch can take to speed up the process — offering a 30-day comment period, instead of a 60-day one, for instance — failing to follow the proper rule-making procedure could open any new rules to serious legal challenges, as the Trump administration has repeatedly found.

Susan Dudley, who led the White House’s office of regulatory affairs under President George W. Bush, tried to resist midnight rule-making after the 2008 election, concerned that it could encourage regulators to cut corners. But ultimately, she bent to pressure from both political and career officials eager to wrap things up.

“It’s really all hands on deck,” Dudley said. “They’ll be finishing things that have been in the works for a while. But you also do things that are rushed, with maybe not enough time for public comment or an inadequate analysis of what the effects of the regulation will be.”

Outside of new regulations, the president could take other types of action to advance his agenda in ways that could be tough to reverse. As part of the Republicans’ sweeping tax cut bill passed in 2017, Congress authorized oil drilling in the Arctic National Wildlife Refuge — a long-standing goal for the GOP that Biden opposes.

In August, Interior Secretary David Bernhardt said that a lease sale for drilling in the Arctic could happen by the end of the year. The department could also approve new permits for oil and gas drilling on other federal land, which Biden has also opposed, prompting an industry rush for permits in the months prior to the election.

“A timely and efficient permitting system has always been a priority for our industry,” Frank Macchiarola, senior vice president of the American Petroleum Institute, an industry group, said in a statement. “Natural gas and oil production on federal lands and waters will play a critical role in the nation’s economic recovery.”

Once such a permit or lease is issued, it is usually difficult to claw back or challenge in court, said Goodwin, who believes that expanded drilling will increase hazardous emissions, among other environmental harms.

“Once they’re out there, it’s resource intensive to fight them,” he said. “At some point you’ve got to accept it as a loss.”