The American people have voted to kick President Donald Trump out of the White House, but in its waning weeks, his administration is still trying to fulfill his inaugural promise to “get our people off of welfare.”
The Trump administration finalized a regulation Monday that could make it harder for people who apply for disability benefits to appeal denials. Starting next month, the Social Security Administration can use its own lawyers to hear appeals instead of administrative law judges, who have more independence from the agency.
Democrats, led by Rep. Richard Neal (D-Mass.), said that the rule “puts unqualified agency staff in control of deciding appeals hearings” and that the Joe Biden administration should reverse the policy.
It’s typical for an outgoing administration to try to cement its legacy with a late flurry of regulations. Dozens of other agency rules are pending at the White House Office of Management and Budget, and the administration could finalize them before Biden takes office in January. Several of the rules target food and disability benefits, while others are aimed at environmental and worker protections.
“We have strong concerns that there may be last-minute roll-backs of health, safety, and environmental protections by the outgoing Trump administration,” Reps. Jerry Nadler (D-N.Y.) and Carolyn Maloney (D-N.Y.) said in a Monday letter to OMB Director Russell T. Vought. “We are concerned that these ‘midnight rules’ may be rushed through without providing Congress adequate time to review these rules, as required by law.”
A spokesman for OMB did not respond to a request for comment.
Two of the pending final rules would tighten eligibility standards for Supplemental Nutrition Assistance Program (SNAP) benefits, often known as food stamps, potentially trimming enrollment by millions.
And agencies are still submitting new rules for final review. Last week, the Social Security Administration sent OMB another change that would ramp up “continuing disability reviews,” which are examinations of whether people receiving disability benefits are still disabled.
Bethany Lilly, director of income policy for The Arc, a nonprofit that advocates for people with disabilities, noted that the proposal had received overwhelmingly negative comments from stakeholders, which agencies are required to consider as part of the rulemaking process, even before the coronavirus pandemic upended daily life in the U.S.
“And now, as we face a massive spike in cases creating huge risks for people with disabilities, it is extremely frustrating to see the administration try to move forward with this harmful proposal,” Lilly said.
Last month, a federal judge blocked a regulatory food benefit cut partly because the Department of Agriculture hadn’t responded adequately to formal criticism. If the regulations are finalized, they could face similar lawsuits.
If a rule is pending when a new president takes office, then the new administration can simply halt it. But if the rule has been finalized, undoing it requires either going through the rulemaking process all over again, which can take a long time, or getting Congress to nullify it.
“We have strong concerns that there may be last-minute roll-backs of health, safety, and environmental protections by the outgoing Trump administration.”
The Congressional Review Act allows lawmakers to overturn recently finalized regulations with a fast-track process. Even if they don’t win control of the Senate in the two Georgia runoff elections in January, Democrats could force the chamber to vote on a resolution of disapproval with the hope that one or two Republicans would support it.
House Democrats on Monday asked the Government Accountability Office, an investigative agency of Congress, to “carefully monitor agency activity during this transition period” to make sure new regulations comply with the law.
Democrats also added riders to an appropriations bill that would disallow the Social Security Administration from implementing its proposals to increase disability reviews or to sidestep administrative law judges. The riders could soon become law if they wind up in a spending bill lawmakers need to pass to avoid a partial government shutdown on Dec. 11.
The Social Security Administration said it wants to let administrative appeals judges hear some disability cases that are currently handled by administrative law judges, or ALJs, just so that the agency has more flexibility to respond to a surge of appeals. Disability advocates say ALJs are the only ones qualified to hear such cases, since they have more independence than administrative appeals judges, whose jobs typically involve reviewing ALJ decisions at a later stage of the appeals process.
“The importance of receiving a fair hearing in which the adjudicator impartially and dispassionately applies law and policy to make an accurate and timely decision cannot be understated,” the Consortium for Citizens With Disabilities said in its comment on the proposed rule earlier this year. “Such an adjudicator must be as independent as possible from the agency for which it is making determinations.”
As a candidate for president in 2016, Trump repeatedly vowed never to touch Medicare or Social Security. But in 2017, his budget director at the time, former Republican congressman Mick Mulvaney, convinced him that he could break his campaign promise because Social Security Disability Insurance is actually “welfare,” a word that Republicans use negatively to describe any program they think makes life easier for poor people who don’t vote for them.