PRESIDENT DONALD TRUMP: [FROM A RALLY IN MICHIGAN] Remember the dishwasher? You’d press it — boom! — there’d be, like, an explosion. Five minutes later, you open it up, the steam pours out the dishes. Now you press it 12 times — women tell me — [LAUGHTER] again, you know, they give you four drops of water. And there are places where there's so much water they don't know what to do with it.
[OVER PERCUSSIVE MUSIC INTERSPERSED WITH WATER DRIPPING]
ILYA MARRITZ: President Trump is not happy with some of the changes in fixtures and appliances in American homes. He thinks all of us have a right to be upset.
PRESIDENT TRUMP: [FROM THE WHITE HOUSE ROSE GARDEN] So, shower heads. You take a shower, the water doesn't come out. You want to wash your hands, the water doesn’t come out. So, what do you do? You just stand there longer or you take a shower longer? Because my hair — I don't know about you — but it has to be perfect. Perfect. [LAUGHTER] [SOUND OUT]
ISAAC ARNSDORF: It’s, like, one of his recurring bits in campaign speeches, and he's even brought it up at some White House events. He has this, like, whole routine about water pressure in faucets and showers and toilets.
MARRITZ: ProPublica reporter Isaac Arnsdorf.
[DRIPPING MUSIC OUT]
ARNSDORF: And he talks about shampooing his hair, and it's pretty weird. But there’s this rule at the Department of Energy that is kind of the technical, legal, policy version of that, where they're basically creating a loophole for shower heads with multiple openings, uh, don't have to meet the same water efficiency standards as normal shower heads.
MARRITZ: Similarly, there’s now a proposed rule to relax efficiency standards for washers and dryers. These rules are both under review by the White House, which means they could be adopted at any time.
ARNSDORF: And what's kind of weird about that one is, actually, the manufacturers of washing machines don't want that rule, because they already sell a lot of machines with a short cycle option. And so they think that this is really unnecessary.
MARRITZ: Isaac says utilities and consumer groups are also opposed, because it could increase energy and water use.
ARNSDORF: This is really just a pure ideological thing: small government, less regulation, government bad.
[TRUMP, INC. THEME MUSIC PLAYS]
PRESIDENT TRUMP: [IN MILWAUKEE] So you're in there five times longer than you're supposed to be. You use probably more water. And it's a very unpleasant experience, right? [LAUGHTER] So we're getting rid of the restrictors. You’re gonna have full shower flow. [LOUD CHEERING] Full sink.
MARRITZ: So these regs would literally address the thing that President Trump has been talking about — like, in a jokey way, uh, like, at campaign appearances and speeches and stuff.
[A MOMENT OF QUIET, THEN THE THEME COMES UP]
PRESIDENT TRUMP: You turn on the water. Drip. Drip. Drip. And then dong, dong …
MARRITZ: Hello, and welcome to Trump, Inc., from ProPublica and WNYC.
PRESIDENT TRUMP: These people are crazy!
MARRITZ: I’m Ilya Marritz.
For almost four years, the Trump administration has been making changes to rules and regulations. Especially those that it considers burdensome to industry.
Now, in its final weeks, the administration is racing to adopt more proposals that could be felt for years to come: in our showers, in our basements — and in even more consequential places.
MARRITZ: There are a dozens of rules changes in the works: on lending to fossil fuel companies, prescription drug prices, immigration and asylum, transgender rights. One rule could bring back the firing squad and the electric chair for federal crimes.
ProPublica has deployed Isaac Arnsdorf and a bunch of his colleagues to keep track of all the changes. They have a spreadsheet, with more than 50 new rules, largely being shaped outside of public scrutiny.
[OVER A TICKING SOUND, THEN A CLOCK CHIMES]
MARRITZ: Isaac told me there’s a shorthand for late-breaking policies from a lame duck White House. They’re called “midnight regulations.”
[THE TICKING BECOMES MUSIC IN THE BACKGROUND]
ARNSDORF: Well, this is basically something that happens at the end of every administration for the last several decades. And, you know, the idea of a midnight regulation is that it happens at, like, the Eleventh Hour. So, right before the administration ends, there's a mad dash to clear everyone's deck of all the unfinished business.
And, you know, in some sense that’s, like, just human nature, to have a crunch time right before a deadline, such as the end of an administration. Uh, but it starts to seem more problematic when you think about it in terms of, you know, there was just an election and the majority of people voted for a change, and the outgoing administration has a several-month opportunity to solidify its policy objectives, which might be diametrically opposed to what the incoming administration wants to do, and it's going to kind of tie the successor’s hands, uh, in terms of what they're going to be able to accomplish.
MARRITZ: So give me some sense of what the Trump administration — uh, through its agencies — has been doing since election day, say.
ARNSDORF: Yeah. So there's a range of things. Some of these things are rules that they've been working on for years and have kind of teed up in the final stages. And so people expect that they're going to try to wrap those up before the inauguration.
[LIGHT, AIRY MUSIC PLAYS]
ARNSDORF: And so some examples of that would be [PAUSE] several rules out of the EPA, um, that they've been working on for a very long time and are in the — the last stage now. And the effect of those would be to make it much harder in the future for that agency to justify restrictions on pollution — particularly air pollution.
And then there are some other things that are just kind of coming out of nowhere, that cropped up over the summer and are getting finished now, which is a really fast turnaround in the context of how long these things usually take.
And then there are some rules that are coming just after the election as an initial proposal. And so that's a really big lift. Um, I mean, it's basically impossible to turn something around that quickly, but the administration is still making noises like that's their intention.
MARRITZ: So you said earlier that this is something that has happened in the past. Other — other outgoing, lame-duck presidents have tried it, I guess with some success. What would you say distinguishes the way that Trump is approaching midnight regulations?
ARNSDORF: One thing that appears to be different are these shortcuts. So, shortchanging the comment period, waving through the White House review faster than it normally occurs. Um, and you know, that's a double-edged sword, because, on the one hand, they might be able to finish more rules that way. But they might also be introducing errors that could make those rules more vulnerable to challenge in court. So they might not end up being that durable for that reason.
The other thing that stands out is just how dramatic a lot of the rules are in terms of cementing the policy objectives of the Trump presidency in the waning days. And the immigration rules are a really good example of that. They're taking a lot of changes: for example, to the process for applying for asylum. And these are already policies, uh, that they've basically put into place, but by finalizing a rule, they're going to make it a lot harder for the Biden administration to reverse that.
MARRITZ: I want to ask you about the regulation, which — I believe you have done the most reporting on — and this is about chickens and chicken processing. So tell me what the proposed rule there is.
ARNSDORF: Well, this was something that was interesting to me, ‘cause I did some reporting on it years ago, and, uh, it's kind of coming back now. So, what happened was, the chicken industry has, for a long time, been pressuring the USDA — the Department of Agriculture — to let them speed up their processing lines, because, naturally, it lets them make more chicken, and make more money.
MARRITZ: And — and that word, “processing,” is so clinical. Um, do you really mean slaughtering, or plucking, or what?
ARNSDORF: So, technically, this is the part of the plant that is called the “evisceration line.” So it's like a mechanical claw, basically, that goes inside the cavity and takes out all the parts that people don't tend to like to eat. And that part is actually basically fully automated. So there's some, but not a lot, of human interaction with that. But, obviously, it — you know, there's a chain reaction throughout the rest of the processing. If you speed up that part, then, you know, you can't just have the chickens piling up further down. So, uh, it does lead to speeding up the pace of work in the parts that are more manual as well. So that's why I say “processing.”
MARRITZ: So they're trying to go to 175 birds a minute. From — from what number?
ARNSDORF: Um, it’s currently 140.
MARRITZ: And maybe I should add that chicken processing plants have been among the workplaces with a lot of problems during COVID, and operators have sometimes acted in ways that seemed reckless around worker safety. So that, um, I would imagine, makes the whole thing a lot more complicated.
ARNSDORF: Yeah. A lot of people were very concerned that the USDA was actually — started issuing more of these waivers for plants to speed up, uh, when the pandemic hit. Because if you're running the lines faster, then what that really means in practice is kind of having more workers working in close proximity to keep up with that pace of 175 birds per minute.
Uh, so that there was certainly a lot of concern that the pandemic was underscoring the — the dangers of this policy change. And so, the USDA actually considered doing this back in 2012, and ended up backing away from it because of those safety concerns.
But then the Trump administration came in and decided to start issuing waivers. So they weren't changing the policy as a whole, but on a case-by-case basis. If factories asked permission nicely, then the USDA would say, “Yeah, go ahead, start running faster.”
[THE TICKING CLOCK MUSIC PLAYS UP AGAIN]
ARNSDORF: And now, years later, they are coming in right up right under the wire and saying, “Actually, we do want to try again to increase the speed limit across the board.” And they're pointing to those waivers — those kinds of pilot plants — as evidence to say, “It's fine, nothing to see here.” And this is one of those rules that, you know — it hasn't even actually been formally proposed yet. We can't read a draft of it. Um, it just went to the White House for review. So it would be really, like, lightning fast turnaround, for them to try to finalize that before January.
But a lot of safety advocates are very concerned about that, because they know that the agency has been laying the groundwork for so long. They know the industry really, really wants this to happen. And they see these other areas where the administration is acting really swiftly to try to finish things off before Trump leaves office.
MARRITZ: We’ll be right back.
[PLUNKY MUSIC PLAYS]
MARRITZ: We’re back, with Isaac Arnsdorf of ProPublica, talking “midnight regulations.”
So I want to read just a couple more measures that I pulled out of your spreadsheet. Uh, these are just sort of the summaries of the rule changes. Uh, one would broaden the definition of “independent contractor,” like people who drive for Uber or Lyft. Uh, there's one allowing religious exemptions for federal contractors.
Uh, there's one to strike down Washington state's meal and rest break rules for truck drivers. Uh, there's one to remove penalties for accidentally killing birds. Uh, one to narrow eligibility for food stamps. Uh, there's a proposed rule to exempt investment advisors from conflict of interest rules. And the thing that kind of strikes me looking at all of these is that each one of these, on some level, has a constituency. It has a group of people who want to see things change.
ARNSDORF: Yeah, absolutely. A lot of these are definitely instances where there's pretty clearly a business special interest that wants something and the administration is kind of bending over backwards to make it happen. But they aren't all like that. And it's interesting when you start to see, sometimes, a business interest in conflict with an ideological commitment of the administration.
Um, and I think an interesting example of that is H1B visas, which are high-skilled workers that the administration is trying to restrict as part of their restrictions on immigration of all kinds. But that's something that businesses really don't want, because a lot of tech companies in particular really value these workers and think that making it harder to hire them will stifle growth and innovation.
MARRITZ: So for those regulations that do get enacted and — and go into force before January 20th, if a President Biden then wants to roll them back or get rid of them, is he going to be able to do so?
ARNSDORF: So, it depends. It’s — it varies a lot, depending on the rule. In general, overall, there are a few things that you can do.
[LIGHT, FLUTTERING MUSIC PLAYS]
ARNSDORF: One is that, if there's a lawsuit, and especially if a judge ends up striking it down, saying there — there’s a problem with how the rule was done, then that's probably, like, the easiest way the Justice Department of the new administration can basically just not appeal and use that as a reason to wipe the rule and — and go back to the drawing board and redo it if they want. Alternatively, there's something called the “Congressional Review Act,” which means that, every time the administration makes a new rule, they have to submit it to Congress. And Congress has a window where both houses, by a simple majority, can vote to repeal the rule. This law’s from the ‘90s, and had only been used once, until 2017, when congressional Republicans used it more than a dozen times to scrap a bunch of midnight rules from the Obama administration.
Now that might not be an option, uh, for Democrats this time around, depending on what happens in the Georgia runoffs, and if Republicans maintain control of the Senate, um, it would be hard to use the Congressional Review Act, um, to repeal some of these Trump rules, unless either they take the Senate, or they manage to get a few Republican defectors to contribute to that simple majority.
Um, other than that, the agency basically has to start back at square one and build a new case for why the rules should change. And that takes a really long time because they have to publish a draft proposal, and they have to take public comment, and they have to address all that public feedback in order to justify the final rule so that it can stand up in court if they get sued.
So kind of all the things that are happening now on a really compressed timeline, that ordinarily take multiple years — that's the process that the new administration would have to go through to make a change afterward.
[MUSIC FADES OUT]
MARRITZ: There's kind of an irony here, because President Trump — at least, at the time that we're recording this — is insisting that he won the election. But, what you're telling me is, a lot of the agencies — a lot of the pieces of his government are acting as if he is not going to be president in a couple of month’s time. And so they are really trying to get these rules done now.
ARNSDORF: Yeah, that's right. It is kind of the one way in which the agencies are actually acting like the Trump presidency is coming to an end. But if you ask them about that, they would say, “Well, we want to get this done before the end of the first term,” without, um, you know, kind of tacitly [LAUGHINGLY] acknowledging whether there is going to be another term, which of course there isn’t.
[HEAVY MUSIC PLAYS]
MARRITZ: Well, there is a window closing fast to get these rules done. Uh, what kind of tips are you looking for?
ARNSDORF: We want to know about any policy that a federal agency is pursuing at any stage of the rule-making process between now and the election that is consequential or controversial. Um, we want to know about it so that the public can stay on top of it.
MARRITZ: Um, Isaac, really good talking to you. Happy Thanksgiving.
ARNSDORF: Talk to you later! Bye.
[MUSIC PLAYS UP FOR A MOMENT]
MARRITZ: The Department of Energy did not comment on the proposed standards for washing machines, dryers, and showers. The U.S. Department of Agriculture said it's following the usual processes on poultry regulations. And the Occupational Safety and Health Administration did not say whether it’s weighing in on the rule change.
Go to TrumpIncPodcast.org to find out how to share a tip with us securely. And while you’re there, you can read Isaac’s story on midnight regulations, reported with Lydia DePillis, Dara Lind, Lisa Song, Jake Kincaid, Doris Burke, Annie Waldman, and Zipporah Osei.
[MUSIC PLAYS UP AGAIN FOR ANOTHER MOMENT]
MARRITZ: This episode was produced by Katherine Sullivan. Our editor is Nick Varchaver. Sound design and original scoring by Jared Paul. Our theme and additional music is by Hannis Brown.
Matt Collette is the executive producer of Trump, Inc. Emily Botein is WNYC’s Vice President for Original Programming, and Steve Engelberg is Editor-in-Chief of ProPublica.
I’m Ilya Marritz. Thank you for listening. Happy Thanksgiving, and please celebrate safely.