Goodbye to Federal Regulations

Title: Goodbye to Federal Regulations

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Now, another Health and Climate Tuesday segment. Remember, we're doing health and climate stories on the show every Tuesday for at least the first hundred days of the Trump administration so these stories don't get lost in the crush of other actions that might grab more headlines. Hello, Columbia and Harvard. Hello, Pete Hegseth and Signal chats. Hello, tariffs and the plunging stock market.

But Coral Davenport, who is now a full-time Trump deregulation reporter for the New York Times, had a sweeping article last week called <i data-start="764" data-end="818">Inside Trump's Plan to Halt Hundreds of Regulations. This includes one on how much staff nursing homes need to have. Is that a bad thing? It includes one that protects miners from inhaling dangerous silica dust. That shouldn't be regulated? And many more. Let's see what's on the list. Coral, thanks for joining us for this. Welcome back to WNYC.

Coral Davenport: Hi, it's great to be with you.

Brian Lehrer: And we'll go down some of the examples you wrote about, like the nursing home staffing and protection for miners. But first, what's the big picture that you're reporting on here? Is this an Elon Musk Doge thing?

Coral Davenport: It is. To be clear, this is something where-- every Republican president comes in saying that they want to streamline regulations or make sort of the regulatory environment more efficient for business. Reagan wanted to do that. Both Presidents Bush wanted to do that. But this is something that is different and new. This is about kind of coming in and from day one, looking over all of the hundreds, even thousands of regulations that are really kind of the safety net of the entire American economy and saying we want to systematically find them and uproot them all at once.

The pieces that are really new and different here are usually regulations take many years to undo. There's a legal process where sort of the undoing of regulations has to be legally justified, economically justified. It takes a long time, which can often be very frustrating. Trump and Doge and Elon Musk think that they have found a way to basically eliminate them, eliminate these rules right away. So they're sort of systematically targeting them. They've set deadlines. Then once they figure out which rules, which hundreds of rules they want to get rid of, they've got a plan in place for effectively taking the rules off the books right away or saying even while the rules remain on the books, we're going to stop enforcing them. And that is really radical and new.

Brian Lehrer: Yeah. That's why you have a section of your article called <i data-start="2902" data-end="2922">repeal and ignore, right?

Coral Davenport: Right. Again, usually it takes a long time to undo a lot of these regulations. So in some cases they think they have legal grounds to just erase some of them. But in other cases, yes, the idea is going to be, once we figured out what regulations we want gone, if it's going to take a while to take them off the books, the federal government, the White House is going to direct all these federal agencies to basically just say ignore these rules, don’t enforce them. And so there will be a clear message to industry. If you ignore these rules, there will be no enforcement, there will be no penalties. We want you to operate as though these rules do not exist.

Brian Lehrer: You mentioned the speed at which rules are usually promulgated or rescinded compared to what they have in mind here. And you say in the article, it could take years to undo a rule. Why would it take years?

Coral Davenport: Well, there's a law, the 1946 Administrative Procedures Act, that kind of sets out how regulations are supposed to be put in place or removed. There's sort of a process that just inevitably takes a lot of time. And there's a lot of reasons for this. So under the law, if the government wants a new regulation, say the EPA wants to put a new regulation on toxic chemicals that are emitted from factories, here's the process they have to follow.

First, they propose the rule. They publish a draft of the rule that includes an economic justification, a health justification, an environmental justification. They calculate the costs and benefits. They make all that information available to the public, and then it's open for public comment. That can be often for months. And members of the public, affected industries can all publicly weigh in on the Federal Register. This is a public process. It's a website.

Often, agencies will also hold public hearings. They'll go around the country. Federal officials will present the rules in public meetings, public hearings, where again, people in industries and companies, all affected parties, can weigh in. And then the law says that the federal agency is required to review and read all of the public comments that are submitted. This is often millions of comments. Take that into account, revise the rule according to the public input, and then redo all of the analysis, all of the economic, the health, the legal analysis.

That usually comes to hundreds or thousands of pages. Then only then, after following this lengthy process that is designed to be open, transparent, take into account public comment, only after that, they publish the rule and it becomes legally final. And so, again, that is a process that usually takes two or three years, sometimes even more. And you have to do the same thing for taking a rule off the books.

Brian Lehrer: And so you write in your article that the White House has a set of novel legal strategies which they argue will allow them to simply repeal or just stop enforcing regulations. And you wrote the White House theory relies on Supreme Court decisions, some recent and at least one from the 1980s that they believe give them the basis for sweeping change. Can you go into that a little bit more? What's the legal argument here that maybe is going to wind up back at the Supreme Court, do you think, for why they're allowed to do this without the usual process under the law that you just described?

Coral Davenport: Sure. One thing I should add is President Trump is kind of famously impatient, and the process that I just described drove him crazy in his first term. He came in really wanting to deregulate, particularly on environmental rules. And he had a bunch of rules that he-- sort of major environmental rules, climate rules, big Obama climate rules that he wanted to take off the books. And he was so frustrated that-- he wanted to get credit for it, and he wanted to campaign on this deregulation and the process that was started at the beginning of the Trump administration. In a lot of cases, the rules were not removed. The process wasn't final until the very end of the administration.

He felt like he didn't really have time to campaign on that. And it really drove him crazy. I just sort of wanted to make the point. Having gone through that is one of the triggers for trying to find this way, to do it quickly. And then the other thing that drove Trump crazy is that when Biden came back in, or when Biden came into office, the Biden administration ended up restoring a lot of those regulations. So those two facts really frustrated and in some cases, infuriated President Trump. And so he wanted something that would say, we want to get these rules off the books right away, and we want them to stay gone so that successive administration would not be able to put them back.

And so they do feel like there are some new and old Supreme Court decisions that can help them reach those goals. There were two major Supreme Court decisions that happened during the Biden administration. One in 2022, one in 2024. One is called West Virginia versus EPA. The other one is called Loper Bright Enterprises v. Raimondo. And the combined effect of those two Supreme Court decisions, they were both aimed at really limiting the authority that Federal agencies have to regulate. They basically say that unless Congress has explicitly laid out the exact authority in a very specific, detailed way for how regulations are supposed to be written, then federal agencies don't really have deference.

It really limits their ability to sort of interpret the law and fill in the blanks of regulations. And so what the White House thinks is that based on those Supreme Court decisions, they can go back to many regulations that were issued, given that sort of more blank, interpretive deference, and say given these new Supreme Court decisions, all these regulations, hundreds of regulations, are no longer legally valid. And so their belief is that given that, they think that they can say, since there are so many of these regulations that under these new Supreme Court decisions are no longer legally valid, we can just take them off the books right away without going through this lengthy notice and comment period.

That is an open question. It will almost certainly go back to the Supreme Court, but they have a lot of confidence in this approach because it was the current Supreme Court that established those precedents. So they feel like the courts are going to be on their side. And then even rules that they don't feel like they can move so quickly, they feel like they're going to say, okay, we know we want to unroll these rules. We know it's going to take two or three years. This is really new and interesting what they're doing.

There's a 1985 Supreme Court decision, it's pretty obscure, called Hecker v. Cheney, that says that when a federal agency declines to enforce a rule, that is really not something that the courts can weigh in on, that the agency can make that decision and it's not the territory of the courts. It's an obscure decision. But a lot of legal experts I talked to said this could give them grounds for doing this thing. We have decided we want to roll back these rules. It may take a couple of years to take them off the books, but in the meantime, we're not enforcing them.

To do that in this sort of comprehensive, across the board scale with directives from the White House is really new. And again, could-- the experts I talked to said this could end up having a profound impact quite quickly.

Brian Lehrer: There's so much interesting stuff that you just described in that answer, so many things I want to follow up on. I'm going to pick one or two and also invite a few callers in here if anybody wants to talk to Coral Davenport, whose full time beat now is covering the deregulation of the federal government that's going on in the Trump administration. 212-433-WNYC with her article Inside Trump's Plan to Halt Hundreds of Regulations. We'll get to the specifics from her article that I mentioned in the top, including nursing home staffing and protection for silica miners from inhaling toxic dust. Why they want to do away with those things.

212-433 WNYC. If you have an experience, something relevant to this to help us report this story or a question for Coral Davenport from The Times. 212-433-9692, call or text. Two things, Coral, from what you were just saying. One, with that Supreme Court precedent that you cited, it seems to me that the Trump administration is hoping that the Supreme Court and the other courts will take themselves out of these debates in many instances on many areas of policies by saying we don't have jurisdiction to review this and hoping that the court is conservative, conservative in the sense that we don't even think we have jurisdiction to review what the executive branch does or what Congress does in these respects.

I think there are many cases like that in one way or another making their way up to the Supreme Court or already at the Supreme Court. The other one is on the idea of making these rule rescissions permanent. I mean, if Trump thinks he can come in and act like a king, if I can put it that way, and wave his hand and make things he doesn't want that are part of the law go away, then why can't the next president, if they have a different point of view, wave their hand and put it back?

Coral Davenport: That's sort of the pattern that we've seen back and forth for several years, this whiplash. The Obama administration did loads of regulations, particularly under environment, health, labor regulations. First Trump administration rolled a lot of them back. Biden administration came in, put a lot of them back. This is what Trump wants to avoid, right? That's where they also think that these two Supreme Court decisions, Loper Bright and West Virginia will be on their side where they'll say we're going to identify rules that are no longer legal under these new precedents, wipe them out and the expectation is it will no longer be legal to put them back, that they think these Supreme Court decisions give them the authority to wipe the rules off the book.

Then a future administration would kind of find their hands tied legally. If the Supreme Court finds that a lot of rules that are on the books are no longer legal under these precedents, then the idea would be that a future administration wouldn't be able to put them back. That's why they're--

Brian Lehrer: Right, right, right. In other words, they would have to go back to Congress. Congress would have to pass a whole new law reauthorizing some of those rules. Peter in Florida, you're on WNYC. Hi, Peter.

Peter: Hi. I'm thinking about this and listening, and it's not a matter of Left or Right or everything. What your guest is making very clear is that it's-- when you're kid, you learn that song It's a Small World After All, it's not a small world. It's an immense world. And, and there are so many nuances to take account of. Things that you can't understand now. You have to give things time. The purpose of regulation is giving us time to not make mistakes like you were supposed to learn by reading Dr. Seuss books. Do not make mistakes. Do not lunge far ahead.

By the way, if you want to go to the internet and google Trump business failures, you'll see a lot of them. Trump airlines, the football team. In other words, he stepped into a lot of things that were complete failures because he didn't take account of the nuances.

Brian Lehrer: Peter, thank you very much. Interesting. Peter in Florida, I don't know if he's near Disney World, bringing in It's a Small World After All, bringing in Dr. Seuss books. Who knew that those things would come up? But to the serious point that he's making, Coral, one might think that it would be an act of good faith to go through the usual deregulation process and hold a public comment period and actually do some kind of cost versus benefit analysis that would take a little bit of time to say, is this rule or this particular rule doing more harm than good? Maybe some of them are, but it takes time to do that evaluation well.

Coral Davenport: It's interesting, what the caller is getting at is very specifically the approach of Elon Musk. He talks about move fast and break things, but his approach to his companies like Twitter and SpaceX is when looking for efficiency, take away as much as you can. And then when things start to break, then you stop and you kind of know, well, that's when we should start to add the last thing back in. That's sort of his kind of broad corporate philosophy. And in this deregulatory push specifically, he's talked about this. Elon Musk has. He's talked about how we need to go through and get rid of all these regulations. And then if later we realize that maybe something actually was needed and was necessary, we can go back and put that in later. I think that is the approach.

Brian Lehrer: So wait till a lot of people have died in South Sudan. To cite some of your New York Times colleagues recent reporting on the effects of the withdrawal of foreign aid. We'll wait till a lot of people are dead to determine that something is broken and they need to go back to something. But okay, maybe that's sarcastic. One of the items that you mentioned that they want to do away with, that I cited in the intro was a rule that protects miners from inhaling dangerous silica dust. And I think Arturo in Jersey City is calling on that specifically. Arturo, do I have that right? Hi, you're on WNYC.

Arturo: Thank you, Brian. It's a pleasure to be on. And thank you for talking about this issue. I am deeply concerned about what the Trump administration is doing to eliminate worker protections. The hundreds of workers from NIOSH that were fired are going to-- they're going to result in thousands of--

Brian Lehrer: And NIOSH, just so we bring the listeners along, that's the National Institute of Occupational Safety and Health. Arturo, go ahead.

Arturo: Absolutely. They do the research on the impacts of occupational exposure. So when we're talking about silica dust, it creates a type of cancer called silicosis. Right now, there is an epidemic nationwide with workers that are working with countertops and exposure to respirable silica. Hundreds of people are going to develop occupational illness that is going to require them to have lung transplants. This is the same exposure that my brothers at my union, the United States workers are exposed to when we're mining. Crystalline silica is the next asbestos crisis in our lifetime and is an exposure that is completely preventable.

Brian Lehrer: Arturo, I'm going to leave it there for time. Thank you so much. Keep calling us. Why that one in particular? Since you cited it in your article, one might think why rescind a rule that protects miners from inhaling dangerous silica dust, Coral?

Coral Davenport: So this is a rule that it was put in place by the Biden administration. And a number of lobbying groups have specifically asked the Trump administration to weaken that or get rid of it. One of the ways in which this process is happening, where they're developing the list of rules that will be targeted, is a lot of industry groups have submitted wish lists of regulations that they would like to see eliminated. And this is one that was on a number of them.

One reason I think is that there are more than one-- there's multiple regulations aimed at addressing this issue, the inhalation of silica dust. And I think some companies, some industries feel that it's duplicative. They feel that it's expensive. They claim that they might want to see it regulated but with less enforcement or in different ways. But definitely this is one that has been targeted in these wish lists.

Brian Lehrer: Listener writes I work at a national grocery store as a sourcing manager. I want to only source meat from plants that continue to adhere to the speed regulations that Trump just rescinded. But I don't think A, my company will care and they will just demand the cheapest option. B, I don't know if I'll be able to find meat that is continuing to run with the old speed regulation.

Before we run out of time, how about that nursing home staffing rule? Why would they want to repeal or rescind a rule for minimum nursing home staffing? We have at least one text from a listener. My 82 year old mom with dementia just rolled out of bed, left in a high position by an aide in memory care, broke her hip, had surgery, is in physical rehab. And the widespread lack of qualified properly trained certified nursing assistants is creating neglect and harm on nursing home occupants right now. So why do they want to go after that standard?

Coral Davenport: Yeah, that's an interesting one. That was another Biden era regulation. What that rule specifically requires is that every nursing home or elder care facility must have a registered nurse on staff at all times, present on the premises at all times. That's what the rule requires. And this rule met with a lot of pushback from a lot of these big companies that run nursing homes. And they said essentially, there's a nursing shortage and it's really hard to meet that requirement. And that particularly in rural areas, it's so hard or so expensive or so difficult to meet that requirement that they feel that they will have to shut down facilities if they can't meet the requirement of having a nurse on staff, one nurse on staff at all times.

There was huge pushback on that regulation for that reason. The argument was this is going to be too expensive, it's going to be too hard to comply with. And so the argument was it's better to have facilities that don't necessarily have a nurse on staff rather than close down for lack of being able to meet the requirements.

Brian Lehrer: I see.

Coral Davenport: This was the argument.

Brian Lehrer: Coral Davenport, whose new full time beat is covering federal deregulation in the Trump administration for the New York Times. We've been talking about her article Inside Trump's plan to Halt Hundreds of Regulations. Coral, thank you for sharing it with us.

Coral Davenport: Thank you for having me.

 

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