Episode 748: Undoing Obama : Planet Money Congress writes laws, but the president makes the rules that put the laws in action. President Obama's staff has been scrambling to lock in rules before Trump takes the helm. But will they stick?
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Episode 748: Undoing Obama

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Episode 748: Undoing Obama

Episode 748: Undoing Obama

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There is this race going on right now in Washington, D.C. this week, it's a sort of sprint, and the finish line is Friday at noon - Inauguration Day.


The desperate runners are all the people who work for Barack Obama, all the people in his administration. And they are trying in these last days to put in place everything they can to ensure the legacy of this president before the next one comes in.

SMITH: They're trying to notch up some last-minute wins. The Obama administration is creating new national monuments in Oregon and California and Utah, Alabama, bunch of places.

VANEK SMITH: They've banned offshore drilling in parts of Alaska. They're trying to protect funding for Planned Parenthood. They released a bunch of prisoners from Guantanamo.

SMITH: I picture them going through the rule book for the president and trying to figure out if there's anything else they can possibly do with the powers of the presidency before Donald Trump is sworn in.

VANEK SMITH: And as they are building this legacy, you can see the Republican Congress already trying to remove the bricks to undo everything they can as fast as the Obama people can put it up.

SMITH: And it's this amazing moment to see because a lot of this drama - this race - comes down to things we don't usually think about when we think about government because it's not about passing laws or signing bills or statutes.

VANEK SMITH: It's rules.

SMITH: Rules.

VANEK SMITH: Thousands of pages of rules that take vague laws and make them a reality. The political balance in Washington, D.C. may have shifted, but the real power is in the hands of the people who write the rules. And the rules that get put in place this week may stick around forever.


VANEK SMITH: Hello, and welcome to PLANET MONEY. I'm Stacey Vanek Smith.

SMITH: And I'm Robert Smith. Today on the show, we will take a single last-minute Obama rule. In fact, it may very well be the very last thing that President Obama does in office. This rule goes into effect the day before Trump is inaugurated on Thursday, and we will show you how this rule came about and how it works.

VANEK SMITH: It's a rule that could help clean up polluted streams and lakes, and could also cost big companies a lot of money. It's a rule that could change this country, and it all depends on whether or not Congress can dismantle it, and that is a question of timing.


SMITH: This last-minute rule slipped in just under the wire is not some final Obama screw you to the Republicans. In fact, it has been in the works for a long time, a very long time, long before Obama even got his law degree. This story started with a coal miner.

VANEK SMITH: Well, before we get started, could I get you to introduce yourself with a hello my name is?

CHUCK NELSON: OK. My name is Chuck Nelson. I'm a retired coal miner. I have about 30 years working underground. I'm a fourth generation coal miner, so father, grandfather, great grandfather, we all worked in the mines - and hello.

VANEK SMITH: Hello (laughter). In the 1980s, Chuck had a job loading coal onto a conveyor belt. He was living in Sylvester, W.V. with his wife and two kids. And he was used to dirt and coal dust down in the mines, but then a coal processing plant was built right near his home.

NELSON: We started eating a lot of coal dust, I mean, bad, bad. And, I mean, I'd go to work and come home at nights, and there would be a half inch of coal dust on everything in the house.

VANEK SMITH: Whoa. What does coal dust look like?

NELSON: It's just black powder. You can see it laying on your tables, on your floors. And it was - to be honest with you, it would even get in the refrigerator, that's where this stuff would get.

VANEK SMITH: Chuck's kids couldn't swim in their pool because there was this thick black skin on the water all the time. Chuck's wife started having really bad asthma problems. So Chuck complained to the coal company and they ignored him, and this made Chuck angry.

SMITH: So Chuck started to talk to environmental groups, to advocacy groups.

VANEK SMITH: On his days off at the coal mine, he would gather a little group of locals together, get into his Mitsubishi Eclipse and drive for five hours to Washington, D.C. And there he would meet with anyone who would hear him, he would talk about the pollution he was seeing in his community and the health problems people were having. He thought the coal companies were to blame.

SMITH: Which did not play too well with some of his fellow coal miners. They would tell him the coal industry is struggling as it is. If you go and advocate for a bunch of new regulations, we're going to lose our jobs.

NELSON: They threatened to hang us. They threatened to throw us down the mine crack and kill us.

VANEK SMITH: But Chuck kept making car trips to Washington, D.C.

SMITH: Now, there was no law that specifically protected Chuck's refrigerator and his swimming pool from coal dust, but environmental experts pointed out that there might be another way to help his family. There was a law already on the books called the Surface Mining Control and Reclamation Act. It was passed in 1977, and it basically said that mining companies should try really, really hard not to kill fish and wildlife.

VANEK SMITH: OK, so here is the actual language. It says that coal companies should not cause, quote, "material damage to the environment to the extent that it is technologically and economically feasible."

SMITH: Whatever that means. Technologically and economically feasible could mean anything.

VANEK SMITH: (Laughter) Well, laws like this, they're supposed to be vague, they're supposed to be really broad. It's part of what helps get Congress to vote for them.

SMITH: And after Congress votes for the law and after they go home on vacation or back to their district, whatever it is they're doing, that is when somebody needs to write the specific rules, what the law should look like on the ground, who it applies to, under what circumstances. And a law can look really different depending on the specific rules. So bureaucrats, lawyers, scientists, experts, they sit down in room after room after room and figure out, OK, so what did Congress mean when they said material damage, and what did they want to happen when they said technologically and economically feasible?

VANEK SMITH: In the case of the Surface Mining Control and Reclamation Act of 1977, Chuck and other environmental advocates felt like the rules were too weak. They said coal companies are still polluting. People are having health problems. The streams are full of heavy metals. Refrigerators are still full of coal dust. This law has no teeth. So they started pushing for a rule change, same 1977 law, just a stricter enforcement. And when Obama took office, the new rule makers he put in charge of mining regulations said, OK, let's do this.

SMITH: One small problem, writing this rule - it would come to be known as the stream protection rule - was not going to be an easy thing. It would take thousands of pages of writing, countless hearings. And all this time, Chuck and the other activists in his community would pile into the Mitsubishi, drive to D.C. and say their piece on Capitol Hill again and again and again.

NELSON: Since 2006, I've made many, many trips to Washington, D.C.


NELSON: Probably 25. And, I mean, every year we used to go - we would lobby. We would go around and talk with senators and congressmen. The EPA though is in all these agencies. We did it once every year.

SMITH: You know, it's funny because I, you know, I follow political news fairly closely, what happens in Washington D.C. And when I think about what really gets done there, I always think about the congressional debates and C-SPAN.


SMITH: C-SPAN, of course, the votes getting passed, the big signing that the president does of the bill in the Rose Garden.

VANEK SMITH: But what Chuck was going through was the real work, the real power of Washington, D.C., the arguing over all the details, the actual writing of the rules.

NEIL KERWIN: Rulemaking as a process is the most important source of law in America. You know, rulemaking is that kind of activity that gets you really into the guts and details of how public policies and programs work.

VANEK SMITH: Neil Kerwin is the president of American University. He also wrote a book about rules.

SMITH: Which I'm sure drives his kids nuts, right? I wrote the book on rules. You got to clean up your room.

VANEK SMITH: (Laughter) He told me that there are practical reasons why the system works this way because politicians are big picture people, they pass laws that give general direction, the gist of what the country should look like. It would take forever to write the kind of details that rules provide.

SMITH: But rules have taken over D.C. for another reason, and that is because presidents can make rules all by themselves.

KERWIN: Well, I mean, the one thing that rulemaking does afford the president is the ability to enact public policy without interacting with the Congress.

SMITH: Rules don't usually need to be approved by Congress. Congress gets to comment, and so does the public. But basically when it comes to rules, what the White House says goes.

VANEK SMITH: That is how President Obama accomplished a lot of what he did. The Republicans controlled Congress, but Obama controlled the rules.

SMITH: Says Obama has kind of gone to town with the rulemaking over the last few months. Since June, Obama has issued more than 60 rules, covering everything from drone certification to how Medicare covers certain tests to school lunches.

VANEK SMITH: And, of course, the stream protection rule.

SMITH: The stream protection rule. Environmentalists had been working on it for years and years and years. And they thought, hey, Obama loves rules, and he's sympathetic to the environmental cause - this is our moment. And so they pressed to finish this rule while Obama was still president. Matt Wasson, an ecologist with the group Appalachian Voices, made it his mission.

VANEK SMITH: How many hours would you say you've put into the stream protection rule?

MATT WASSON: (Laughter) Wow. I guess...

VANEK SMITH: 15 years worth of hours.

SMITH: Since the early days when Chuck the coal miner had started complaining about the coal dust in his house, the stream protection rule had ballooned to 1,200 pages. Obama's first term passed without finishing the rule. His second term was nearing its end and it still wasn't finished.

VANEK SMITH: But nobody could tell me why it was taking so long. I asked everybody this, and people just kept saying, well, that is how long rules take. I mean, there are all these rules that you have to follow when you're making a rule. There are public comment periods. You have to meet with all of the people involved, the companies, the miners. You have to go to people's homes. You have to take soil samples and water samples. There's just all this stuff you have to do.

SMITH: And then there was the whole political thing, too, like maybe Obama did not want to piss off coal states right before the election. Perhaps he just assumed that Clinton would win, and she would take care of it.

VANEK SMITH: Whatever the reason, Obama's agencies worked really fast after Trump was elected. And on December 20, when Matt Wasson was visiting his brother in California for the holidays, he woke up to see an alert on his phone - the stream protection rule was being issued. It would go into effect on January 19, literally on the last full day of Barack Obama's presidency.

WASSON: You know, kind of - I guess the thought was, oh, snap, what's going to be in here, as well as some relief that they actually did get it done.

VANEK SMITH: So you were like, oh, finally, after all these years.

WASSON: Probably that.

VANEK SMITH: I mean, 'cause this has been for you 15 years of your work in a way.


SMITH: As Matt was reading the alert on his phone in California feeling that sense of relief, members of the coal industry were also getting the news.

VANEK SMITH: Adam Eckman was at his desk in Washington, D.C. that morning. He'd heard the rule was going to be finalized, and he was refreshing the Department of the Interior's website over and over again. He's a lawyer for the National Mining Association, which is an advocacy group that represents mining companies.

SMITH: And just like the environmentalist, Adam had spent years of his life working on this rule, thousands of his own hours on the opposite side fighting the stream protection rule, although he does not like that name.

ADAM ECKMAN: That name is something of a misnomer. It amends or modifies 475 existing rules within the Code of Federal Regulations, so to call it a single rule is certainly not accurate.

VANEK SMITH: As you might be able to tell, Adam is a lawyer by training. And he had spent all these years talking to Congress and mining companies and people who live near mining operations. And as the days were slipping by, Adam thought he had won. It was too late in Obama's presidency, and the stream protection rule would not happen, but then at the 11th hour, it came through. And Adam thought this isn't right, this is a rush job.

WASSON: You know, the comment period on it was only 90 days. And 90 days might sound like a lot of time, but when you're reviewing thousands of pages of material, it's not. It's no time at all. And I thought about all of the stakeholders that are affected by this. It doesn't just affect mining, it has effects on farmers and land users and all different kinds of people, you know. And for the agency to then move forward with the rulemaking, you know, just a couple of weeks before the end of the administration. So, yeah, I mean, obviously I was very disappointed to put it mildly.

SMITH: Disappointed because once a rule is done, once a rule goes into effect, undoing it is also really hard. The guy who wrote the book on rules, Neil Kerwin, says it basically takes as long to eliminate a rule as it does to make it in the first place.

VANEK SMITH: How hard is it to undo a rule?

KERWIN: Well, I mean, I think you - the general consensus is that a president seeking to repeal a rule would have to write a regulation to alter or eliminate it. So you go through the same process to repeal a rule or alter a rule as you do to write one in the first place.

VANEK SMITH: So a lot of work?

KERWIN: A lot of work (laughter).

SMITH: And a lot of time, years' worth of testimony, scientific studies, lobbying Congress and hearings. And Congress' agenda is suddenly tied up for months, so rules, their power really is inertia, they tend to stay put.

VANEK SMITH: Except...

SMITH: Yeah, except for one thing. Congress has a secret weapon in this battle. Now, Congress had noticed long ago that presidents were using this rulemaking power to their advantage. If there's one thing Congress hates, it's when the president gets more power. So back in the 1990s, the Republican Speaker of the House Newt Gingrich, he was complaining about all these rules that presidents pass, especially at the last minute, gumming up the works, forcing their will. And so he pushed through a law that a lot of people didn't think much about at the time, a sort of neutron time bomb.

VANEK SMITH: It's called the Congressional Review Act, and it says that any rule passed can be erased within 60 congressional days if the House and Senate agree and the president signs off on it. The rule will vanish.

SMITH: And most of the time this doesn't matter because if a president writes a rule and Congress tries to overturn it, the president can just veto that. But this comes into effect when there is a new president, when a rule is passed in the very last days of the president's administration.

VANEK SMITH: And the stream protection rule is a perfect target for the Congressional Review Act. Chuck Nelson, the guy who had been working on the stream protection act since the '80s, the coal miner, said this was the first thing that went through his head when he watched Trump on television take the podium for his victory speech.

NELSON: All this work we've done for years, all that's gone, you know. It's - all that work for, you know, that's just going to be wiped away with the stroke of a pen.

SMITH: Wiped away with the stroke of a pen, and wiped away for good because if a rule is overturned using the Congressional Review Act, a similar rule cannot be put in place ever again.

VANEK SMITH: But it's really rare. Of the 73,000 rules that have been issued since the Congressional Review Act was passed, it is only been used successfully once on one rule in 2001. And we're going to tell you about it briefly because this could be the fate of the stream protection rule.

SMITH: This one unlucky rule was developed by OSHA, the Occupational Safety and Health Administration, and it was pushed through by Bill Clinton. It was called the Department of Labor Ergonomics Program. (Laughter) Yes, it's exciting. It has to do with ergonomics and repetitive stress injury. It said if multiple employees complained about ergonomic conditions in a workplace, the employer had to make a change.

VANEK SMITH: So I get carpal tunnel, I have a trackball mouse and a wavy ergonomic keyboard. Would that have been covered?

DAVID COCHRAN: That would have been covered.

VANEK SMITH: OK. David Cochran helped write the ergonomics rule. He is a systems engineer, and he spent three years writing the rule, touring workplaces where injuries were common, places like meat packing plants, and talking to workers and companies.

SMITH: David says the final rule with everything included was 4,000 pages long. It was one of the last rules passed by the Clinton administration. And when George W. Bush took office with a Republican Congress, they went after the OSHA rule, and using the Congressional Review Act within two months overturned it.

COCHRAN: It was a very conservative, very effective effort.

VANEK SMITH: I mean, it occurs to me that you spent years getting this rule together, gathering public support, working with companies, and all that was just sort of undone in, like, 60 days, 90 days.

COCHRAN: Yep, guess it was.

VANEK SMITH: It was the Congressional Review Act is like the kryptonite for rules. No matter how much work went into a rule, it can just disappear overnight, never to return.

SMITH: And I know it sounds harsh, I mean, people put their whole lives into some of these rules, and they can be suddenly overturned by Congress. But what we're talking about here is a much bigger issue, which is this balance of power between the presidency and the Congress. And they've been fighting over this sort of thing for decades. And Congress has a point, which is as the president has taken more and more power in writing rules to, like, change laws through rulemaking, Congress is trying to take back power. And frankly, when Congress does this - uses the Congressional Review Act - they do take a vote, it is democratic.

VANEK SMITH: And they could be getting a lot more power in the pretty near future. There is a bill going through Congress right now called the Midnight Rule Relief Act, it is basically this bundle and destroy idea. And what it would do is allow Congress and President Trump to take all the rules passed by the Obama administration since June and undo them with one vote.

SMITH: Which could dramatically shift a lot of power back toward Congress because with one vote, think of what they could do to the Obama administration. They could take away the offshore drilling rule, the Planned Parenthood rule, the stream protection rule we've been talking about, it could all just finish. Neil Kerwin, the rules expert, says even if it passes though, he's not sure this will hold up.

KERWIN: Once it's enacted - if it's enacted - you know, it too could be challenged in court. I mean, you know, one - the one thing you learn in Washington is nothing's ever over (laughter).

SMITH: Another rule in Washington - everything comes around. If Republicans in Congress create this new ability to overturn presidential rules, then someday it may be used against them. It may be used by a Democratic Congress to overturn Republican rules, maybe even in Donald Trump's final days in office.

VANEK SMITH: In the meantime, David Cochran, the man who wrote the OSHA rule that got overturned, has a few words of advice for the stream protection advocates as they are biting their nails waiting to see what will become of their rule. He says there is a quote that he has taken great solace in, and he reads it to himself when he's feeling really low.

COCHRAN: Here, let me see if I can pull it up. Quotes, OK - "the only kinds of fights worth fighting are those you are going to lose because somebody has to fight them and lose and lose and lose until someday somebody who believes as you do wins. In order for somebody to win an important major fight a hundred years hence, a lot of other people have to be willing for the sheer joy - fun and joy of it to go right ahead and fight knowing you're going to lose. You mustn't feel like a martyr. You've got to enjoy it" - I.F. Stone.

VANEK SMITH: I.F. Stone. Who is I.F. Stone, what was he talking about - or she?

COCHRAN: I don't know.

SMITH: I.F. Stone was a famous investigative muckraking reporter during the '50s and '60s and '70s.

VANEK SMITH: And David said all was not actually lost because even though his rule got erased, he still gets calls all the time from employers and workplaces asking him to send the old rules so they can look at it and use it as a reference point. And, he says, ergonomics, repetitive stress injuries went from being kind of a joke to being something that employers take really seriously.

SMITH: Even without the rule.

VANEK SMITH: Even without the rule.


VANEK SMITH: We always love to hear what you think of the show. You should write us on Facebook or Twitter or email us at planetmoney@npr.org. And if you are on the lookout for something fun to listen to, can we recommend Wait Wait... Don't Tell Me? It is NPR's news quiz show. It is a lot of fun. You can find it on the NPR One app or wherever you get your podcasts.

SMITH: And last week's episode hosted by Tom Hanks.

VANEK SMITH: Today's show was produced by Nick Fountain, Elizabeth Kulas and Sally Helm. We would also like to thank Joseph Pizarchik and Peter Morgan. Thanks, guys. I am Stacey Vanek Smith.

SMITH: And I'm Robert Smith. Thanks for listening.


VANEK SMITH: OK, Robert, so I have a list here of the rules that have been finalized in the last 60 congressional days, the ones that could be overturned by the Congressional Review Act. I'm going to list them off - U.S. Citizenship and Immigration Services Fee Schedule, Standards for Covered Clearing Agencies, Workforce Innovation and Opportunity Act, the Revised Critical Infrastructure Protection Reliability Standards, Operation and Certification of Small Unmanned Aircraft Systems - I think that's drones, here come the drone rules. Standards of Performance for Municipal Solid Waste Landfills (laughter). Sorry, got to love bathroom humor even when it's in regulation. Federal acquisition regulation, Fair Pay and Safe Workplaces, the Workforce Innovation and Opportunity Act, Head Start Performance Standards, migratory bird hunting regulations on certain federal Indian reservations and ceded lands for the 2016-2017 season - just the season.

And it just keeps going. Oh, here's a short one, Margin and Capital Requirements for Covered Swap Entities. That's interesting. Transition Assistance Program for military personnel, amendments to the commission's rules of practice. I wonder if that - how long (laughter) that one took to write, it sounds so general.

Oh, this one is long - Medicare program hospital inpatient prospective payment systems for acute care hospitals and the long-term care hospital perspective payment system and policy changes and fiscal year 2017 rates, quality reporting requirements for specific providers, graduate medical education hospital notification procedures applicable to beneficiaries receiving observation services, technical changes relating to cost to organizations and Medicare cost reports, finalization of interim final rules with comment period on LTCH PPS payments for severe wounds, modifications of limitations on redesign by the Medicare Geographic Classification Review Board and extensions of payments to MDHS and low-volume hospitals. That's a rule.

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