Trump’s favorite weapon in the coronavirus fight: Deregulation

Christina Animashaun/Vox

Trump entered the White House promising to roll back rules. The pandemic has given him the perfect chance to do that.

Amber Sahagun, a 39-year-old mother of two, sat in the passenger seat of a white Jaguar on the afternoon of March 19. Her fiancé, Manuel Rodriguez, was driving, and she had her beloved Shih Tzu mix with her. They were stuck in traffic behind a construction zone on a West Texas highway near the Odessa city limits.

Behind them, Ranjit Singh drove a tractor-trailer at a speed he couldn’t control — 69 miles per hour, according to a lawyer for Sahagun’s family. He didn’t see the stopped cars in time. He swerved, according to a police report, but his truck struck the back of the Jaguar, pushing it into another car in front of it, then through cable barriers into the median. Finally, the truck rolled on top of the Jaguar, crumpling the car and crushing Sahagun and her dog. She died at the scene. Rodriguez suffered life-threatening injuries.

Singh was later arrested and charged with manslaughter and aggravated assault.

Courtesy of Sandy Cobb

Amber Sahagun with her dog.

Investigators said afterward that Singh had been driving for more than 16 hours straight, without rest. Normally, that would be illegal — a violation of federal rules designed to keep trucking companies from pushing their drivers to dangerous levels of fatigue. But that day it wasn’t.

That’s because, six days before the crash, President Donald Trump waived the driver fatigue rules for trucks carrying food, masks, gloves, and other items essential to addressing the coronavirus pandemic. Singh’s truck was carrying essential goods, a dispatcher for one of the trucking companies he worked for, US Roadways Enterprises, told the Center for Public Integrity.

The driver fatigue rules are among a long list of regulations that Trump has temporarily waived in recent months — including measures directly related to the public health crisis, such as rules preventing telehealth, and measures not-so-related, such as rules governing the enforcement of environmental regulations — in the name of addressing the pandemic.

Courtesy of Steven Samples

Sahagun’s white Jaguar after the crash.

Courtesy of Steven Samples

The tractor-trailer after the crash.

And Trump has continued to seize the moment as the nation grapples with the coronavirus. “We must continue to cut through every piece of red tape that stands in our way,” he said in May, just before signing an executive order directing federal agencies to keep cutting regulations using “any emergency authorities” they have available.

Since Trump declared the coronavirus a national emergency in March, the White House has signed off on or is reviewing 247 temporary or permanent regulatory actions — only 33 of which were classified as pandemic-related — according to a Center for Public Integrity analysis of data from the Office of Information and Regulatory Affairs.

The administration’s moves represent a larger push for deregulation as Trump nears the end of his first term and as the pandemic continues to grab headlines. Deregulation has long been a priority for Trump and his appointees, but until recently, they’ve had mixed success — with many of their moves mired in the courts.

But the pandemic has given the administration an opening for what could be its most effective salvo yet against what it sees as regulatory overreach and what others see as rules vital to keeping America safe and healthy.

“It’s really been a full-on attack by the Trump administration,” said Matt Kent, regulatory policy associate for Public Citizen, a consumer advocacy group that has led criticism of Trump’s deregulation agenda. “It makes it less safe to go outside, less safe to be in your workplace, less safe to drive a car, less safe to breathe the air.”

Earlier this month, Democrats on the House Judiciary Committee sent a letter denouncing the administration for pushing forward with deregulation during the pandemic.

“Instead of addressing this crisis head-on, the Trump administration appears to be exploiting the chaos of the pandemic by rolling back critical civil rights regulatory protections and environmental safeguards,” the letter said.

Despite similar calls from advocates to stop taking regulatory actions during the pandemic, the administration has finalized a series of major rules in recent months. For example, it bolstered the rights of those accused of sexual assault on college campuses by letting them question their accuser through representatives. It also weakened auto emission standards, allowing automakers to make cars that pollute more and burn fuel less efficiently than dictated by Obama-era rules.

The administration also changed the driver fatigue rules — a move long sought by the trucking industry. The new limits let certain drivers work two hours longer than allowed under Obama-era mandates, extend their workday when driving in bad weather, and count on-duty, non-driving time — such as time spent unloading goods — as a break, among other changes.

The administration has defended the new rule, saying that it’s meant to give trucking companies greater flexibility and that it won’t compromise safety. But advocates worry it’s ripe for abuse.

“Extending truck drivers’ already highly demanding work days and reducing opportunity for rest will endanger the public,” Cathy Chase, president of Advocates for Highway and Auto Safety, said in a joint statement with two other safety groups and a truckers union in May. “At a time of national crisis, the administration should step up and protect truck drivers.”

Shrinking the state

Trump entered the White House promising to dismantle the administrative state — a promise conservatives cheered. One of his first actions as president was to issue an executive order requiring that federal agencies scrap two older regulations for every new one they introduced.

“We’re cutting regulations massively for small business and for large business,” Trump said as he signed the order. “This will be the biggest such act that our country has ever seen.”

To date, the administration has rolled back clean water protections, loosened Affordable Care Act requirements for insurance plans, and cleared the way for more fast-track deportations, among other changes. The White House did not respond to requests for comment for this story.

Jonathan Berry, a Trump appointee who headed the US Department of Labor’s regulatory efforts until April, said the administration has been targeting rules that benefit “political agendas with little connection to the common good.”

Trump’s cuts to regulations have aimed at “not necessarily reducing worker or consumer protections but making it crystal clear that an employer ... knows exactly where the lines are,” said Berry, who presided over dozens of rule changes, including nixing an Obama-era requirement that employers submit detailed workplace injury reports to the federal government. “That clarity can give businesses a lot more confidence about how to invest and how to grow, which means more and better-paying jobs for workers.”

In addition to cutting rules, the administration has slowed the pace of new regulations and reshaped how federal agencies regulate.

“These deregulatory actions are so rushed, and a lot of times there’s a lack of experience from Trump officials in pushing them through. They’re very open to litigation.”

The first 18 months of Trump’s presidency saw roughly 75 percent fewer new regulations than the two previous administrations issued in the same period, according to Bridget Dooling, a professor at the George Washington University Regulatory Studies Center and a career regulatory policy staffer under three administrations.

Trump has also taken steps to dilute the power of agencies’ nonbinding guidelines and give the White House greater control over regulations from a broader swath of agencies, among other changes.

Many on the right view the administration’s deregulatory effort as one of its great accomplishments, praised even by conservatives willing to criticize Trump.

“The Trump administration’s long parade of deregulation ... is among its biggest achievements,” wrote the Wall Street Journal’s editorial board in May. “Amid the coronavirus pandemic, this work has thankfully continued.”

But some academics who study regulation say both Trump’s supporters and his critics may be giving him too much credit.

“The Trump administration hasn’t been very successful” in deregulating, said Stuart Shapiro, a professor of public policy at Rutgers University. “The administration to date has been more interested in announcing things than doing the careful work they would need to do to put in place their deregulatory agenda.”

Indeed, many of the administration’s early deregulatory efforts have wound up stalled or overturned by courts. In 86 lawsuits challenging Trump deregulation, the administration won 9 percent of the cases as of June 27, according to a tracker maintained by the Institute for Policy Integrity at the New York University School of Law. In all other lawsuits, the administration either lost in court or withdrew its rule-cutting move.

Previous administrations had an overall 69 percent “win” rate, according to a 2010 Virginia Law Review analysis of 11 studies.

“The corner-cutting is legendary,” Kent said. “These deregulatory actions are so rushed, and a lot of times there’s a lack of experience from Trump officials in pushing them through. They’re very open to litigation.”

Despite its dismal record in court, the administration has been picking up the pace of its regulatory actions during the pandemic, a Center for Public Integrity analysis shows. Since Trump’s emergency declaration in March, the White House has reviewed 68 more measures than it had in the same period prior to the emergency declaration.

That may be in part because Trump’s team of deregulators have been trying to beat the clock set by a federal law that would allow Democrats to undo much of the administration’s work if they win power in November.

The Congressional Review Act, part of the “Contract with America” that Newt Gingrich and House Republicans campaigned on in 1994, allows lawmakers with a simple majority to revoke any regulations implemented within the previous 60 legislative days. Republicans used the law in 2017 to undo scores of regulations set in place late during President Barack Obama’s second term.

This year, observers estimated the administration had until mid-May to push deregulation through, though it’s unclear how often Congress will meet this year in the midst of a public health crisis, and thus unclear what period “60 legislative days” will cover.

But critics say the administration is also taking advantage of the political opportunity offered by the pandemic.

“I definitely think they’re exploiting the crisis,” Kent said. “‘While nobody’s looking, let’s press the gas pedal.’”

Political opportunism or not, the current pace of deregulation could be just a preview of what’s to come: Trump might throw deadlier punches at regulations in a second term, when appointees would have more experience with the nuances of administrative law.

“There have obviously been serious litigation challenges over the course of the administration, but my impression is that the tide has turned,” Berry said. “A second Trump term would mean agencies reaching higher-hanging fruit when it comes to deregulation.”

But the administration isn’t wasting what’s left of Trump’s first term, charging ahead with as much deregulation as possible — and pleasing the trucking industry is among the priorities.

As Trump signed his executive order in the White House’s East Room in May, directing federal agencies to find emergency deregulations they could make permanent, he turned to Transportation Secretary Elaine Chao. “Good luck,” he said. “It gives you tremendous power to cut regulation.”

Zooming ahead

On March 11, actor Tom Hanks told the world he had tested positive for the coronavirus. The World Health Organization declared a pandemic. And representatives of the American Trucking Associations trade group visited a little-known White House office dedicated to reviewing new regulations and, especially in the Trump era, finding ways to winnow existing ones.

There, the trucking lobbyists argued for changes to the driver fatigue rules they’d long chafed under. The meeting with the White House office represented their final stop before the changes could be finalized.

But before that could happen, the administration waived the existing rules for some drivers altogether, part of the raft of temporary moves during the pandemic. The temporary waiver was extended three times, exempting truck drivers delivering essential goods from the fatigue rules through July 14.

In April, Trump gave a speech praising truckers’ role in the coronavirus response, flanked on the South Lawn by two tractor-trailers, including the trucking association’s red, white, and blue “Interstate One” rig. Trump said truckers would be “critical” in getting the country’s “economic engines roaring.”

“Once we get going, the truckers are going to be working so hard you’re not going to be able to take a day of rest in between,” Trump said. “Maybe a couple of hours.”

Alex Wong/Getty Images

President Trump and Secretary of Transportation Elaine Chao on the South Lawn of the White House on April 16.

At the same event, Chao underscored the administration’s close relationship with trucking companies.

“At the president’s direction, we have reached out to the trucking industry on an unprecedented basis, listening to your concerns, providing regulatory relief,” Chao said.

Indeed, the administration has a very close relationship with large trucking firms. Jim Mullen, acting administrator of the Federal Motor Carrier Safety Administration, which regulates the trucking industry, worked for a decade at Werner Enterprises, a large, publicly traded trucking company based in Nebraska.

Immediately before joining the administration in 2018, Mullen worked as a registered lobbyist on behalf of a firm that now lobbies for Werner. The company’s president criticized the Obama-era driver fatigue rules in 2013, saying they would increase his company’s costs, while Mullen told Congress in 2015 that the rules represented “government overreach of the worst kind.” He did not respond to requests for comment.

The trucking industry has spent more than $9 million in federal campaign contributions since 2016, with the bulk of them going to Republicans, according to data from the National Institute on Money in Politics. In 2019, the American Trucking Associations spent more than $2.6 million lobbying on matters that included the driver fatigue rules, according to a Center for Public Integrity analysis of federal lobbying disclosures. Individual trucking companies also lobbied on the rule change.

Safety advocates were outgunned. Two of the loudest defenders of strict driver fatigue rules — Advocates for Highway and Auto Safety and Citizens for Reliable and Safe Highways — spent roughly $380,000 lobbying on all issues in 2019. The International Brotherhood of Teamsters union, which says it represents roughly 600,000 truck drivers, also opposed weaker rules and spent $3.19 million in 2019 lobbying on a broad range of issues, including those concerning its members in other industries.

Loosening up the driver fatigue rules has been on the trucking industry’s agenda for years. The trucking association fought the Obama administration when it tightened the rules, and it asked the Trump administration to look at revising them in 2017.

Proponents of the rule change said it was data-driven to give truckers more room to set their own schedules safely, but safety advocates said regulators misinterpreted data and that the outcome of the rulemaking seemed predetermined. The administration received more than 8,000 public comments, many from truck drivers, since it first announced it would seek to change the regulation in 2018.

Some supported the current rules. “You see driver fatigue all over the road every day,” wrote Ohio truck driver Cedric Lockett. “I and other drivers need our 30 minute break. This is the only time we have to rest and eat during the day. Instead of making it safer you are making it more dangerous out here.”

Others asked for more flexibility. “I am an adult, I don’t need my hand held by the government,” wrote Indiana truck driver Anthony Scheerer. “I drive tired more frequently because the current [rules] are not conducive to our changing schedules.”

Truck drivers have worked under some form of “hours of service” rules since 1936. They were revised significantly in 2003 and again during the Obama administration out of concern that too many truck drivers were driving on little sleep, endangering themselves and others.

“To allow the Covid-19 pandemic to become another excuse to loosen up these hours of service and allow them to have to drive more is just inhumane,” said Joan Claybrook, a former head of the National Highway Traffic Safety Administration under Jimmy Carter and now a board member of the Truck Safety Coalition.

Even under the Obama-era rules, safety advocates say, fatigue was still an issue. Nearly 5,000 people died in crashes involving large trucks in 2018, according to federal highway safety data. The number has climbed nearly every year since 2009. Safety advocates want the fatigue rules tightened, not relaxed.

“It’s a huge problem. It’s a pervasive problem,” said Jeff Burns, a Missouri lawyer who has spent his career suing trucking companies for collisions. “But it is woefully underreported because it’s so difficult to prove.”

Advocates say stricter driver fatigue rules protect not only others on the road but also truck drivers themselves, since many of them are often paid by the mile and may feel pressured by bosses to press their limits. Trump’s changes, they say, invite companies to fudge fatigue rules — by, for example, designating more drivers as “short-haul” and thus exempting them from logging their driving hours electronically.

“It’s really compounding the safety issues that are already present within the industry,” said Pete Kurdock, general counsel of Advocates for Highway and Auto Safety. “Many of these truck crashes are really horrific in nature where you see multiple fatalities. The ripples to community are really far and wide and really just heartbreaking.”

The administration has estimated the permanent change to the driver fatigue rules would save the trucking industry more than $2.8 billion over 10 years by increasing driver productivity, while costing states and the federal government roughly $8.6 million to retrain inspectors.

“The additional flexibility in the new rule allows drivers more opportunity to manage their own schedules — thus allowing them to drive more safely,” Kyle Bonini, spokesperson for the Federal Motor Carrier Safety Administration, said in an email.

The rule was officially published June 1. The trucking association did not respond to specific questions from the Center for Public Integrity, but its president and CEO, Chris Spear, thanked the administration for the change in a statement.

“We appreciate the time and attention President Trump, Secretary Chao and Administrator Mullen have paid to our industry and to this regulation,” Spear said.

“If the wheels aren’t turnin’”

In Texas, Sahagun’s family sued Singh, the trucking companies he was working for, and Sahagun’s fiancé, saying their negligence caused the crash.

“This did not need to happen,” said Steven Samples, the lawyer representing Sahagun’s family. “All it needed was a driver who was not going to fall asleep behind the wheel who was not incentivized to keep on going when he was tired.”

The trucking companies did not respond to requests for comment, but US Roadway Enterprises, in a court filing, denied the allegations in the lawsuit.

Meanwhile, Sahagun’s family is mourning, trying to collect every picture of her, said her aunt, Sandy Cobb, who was close to her. Sahagun left behind two sons, ages 14 and 19; she was planning to return to school to become a pharmacy technician. “I just want her back,” Cobb said. “We need her. Why was it her?”

Courtesy of Sandy Cobb

Sahagun left behind two children, ages 19 and 14.

Kurdock worries the new, permanent Trump regulation will make wrecks like Sahagun’s more common, especially as trucking companies rush to address the pandemic.

“Really, this is the worst possible time to be advancing a regulatory proposal that’s going to increase fatigue instead of reduce it,” Kurdock said. “Especially at this time when you see so much stress being put on the industry.”

Burns still remembers the first truck crash he worked on, nearly 30 years ago. A 6-year-old girl — about the same age as his daughter at the time — was killed. He took the driver’s deposition and asked him: Why didn’t you sleep? Why were you in such a rush?

The driver replied: “Money. If the wheels aren’t turnin’, nobody’s earnin.’”

“That’s a mantra within the trucking industry,” Burns said. “That scared the hell out of me. It scares the hell out of me still.”

Joe Yerardi contributed to this report.

This series was made possible through a collaboration with the Center for Public Integrity.

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