Shortly before the 2016 election, I wrote an article describing how President Barack Obama had managed to implement his civil rights agenda with little help—and, at times, much resistance—from Congress. Obama, I explained, had seized upon federal agencies’ authority to interpret civil rights law, expanding protections for minorities by construing existing statutes as broadly as possible. I argued that the result was a legacy of equality and inclusion shielded by administrative safeguards that would endure well beyond Obama’s tenure.
On Monday, the Washington Post published a piece reviewing the Trump administration’s efforts to roll back the civil rights protections crafted by executive agencies during the Obama era. For liberals, this is not good news. Trump’s appointees have made quick work of the regulations crafted by the previous regime, disposing of rules and guidance designed to help women, minorities, the poor, and LGBTQ people. Obama’s congressional achievements may prove durable, but the agency rules that lay at the heart of his progressive agenda are quickly disappearing in a bureaucratic fog, with LGBTQ protections proving especially vulnerable.
Federal agencies are charged with interpreting and implementing laws passed by Congress. They can promulgate two types of regulations: rules, which are binding regulations with the full force of law, and guidance, which interpret rules and are not binding. Rules must go through a public notice-and-comment period; guidance does not. To revoke a rule, an agency must once again undertake the notice-and-comment process, allowing opponents to intervene, protest, or sue. (Congress can also overturn recently finalized rules.) To revoke guidance, an agency need only issue a memo declaring the guidance to be null.
Many federal laws outlaw sex discrimination, and the courts increasingly understand that prohibition to include sex stereotyping against LGBTQ people. Obama’s agencies followed suit. His administration’s most famous transgender protection, forbidding schools from discriminating against trans students, was derived from Title IX’s celebrated bar on discrimination because of sex. But this directive was issued as guidance by the departments of Education and Justice, interpreting an older rule regarding Title IX. As a result, Attorney General Jeff Sessions and Secretary of Education Betsy DeVos were able to withdraw the guidance in February, immediately leaving trans schoolchildren across the country unprotected.
Some of Obama’s less controversial protections were also issued as guidance: A regulation proscribing anti-LGBTQ discrimination in credit, for instance, was handed down in the form of a letter, rendering it susceptible to sudden withdrawal. Other protections took the form of legally binding rules, making them more difficult, though not impossible, to reverse. To take one example, Sessions’ Justice Department has indicated that the Department of Health and Human Services is planning to repeal a rule interpreting the Affordable Care Act to prohibit discrimination against trans and gender-nonconforming people. (HHS has already stopped gathering data on LGBTQ elders.) Ben Carson’s Department of Housing and Urban Development is also laying the groundwork to rescind a rule allowing trans people without a home to stay at the sex-segregated shelter that corresponds to their gender identity. And, with Trump’s approval, congressional Republicans used an arcane law to reverse a rule barring states from defunding Planned Parenthood.
Sessions in particular is in an excellent position to walk back the Obama administration’s efforts to protect minorities. The attorney general is currently reviewing consent decrees with discriminatory police departments, a process that will likely end with looser federal oversight of law enforcement abuse. He has also switched the DOJ’s position on voter suppression laws, urging a federal court to dismiss litigation against Texas’ draconian voter ID measure. And just this month, Sessions overturned an Obama-era policy designed to minimize the infliction of mandatory minimums upon drug offenders. Sessions’ new policy, which directs prosecutors to pursue the maximum possible penalties, is certain to have a disproportionate impact on racial minorities.
The easiest way for the Trump administration to block civil rights protections, however, is to defund the program for enforcing them. Trump’s proposed budget would do exactly that to the Environmental Protection Agency’s environmental justice program, which is tasked with identifying and alleviating pollution that disproportionately affects minority communities. Under Obama, the project flourished: His EPA developed sophisticated tools to measure the correlation between pollution and socioeconomic factors, helping the government protect low-income individuals from health hazards. But in March, the program’s leader resigned, citing Trump’s efforts to sabotage his projects, and now it seems destined for the chopping block.
Trump also plans to break up the Labor Department’s Office of Federal Contract Compliance Programs, which prevents federal contractors from engaging in discrimination. With the help of Congress, he has already repealed an executive order requiring contractors to provide documentation proving compliance with nondiscrimination law. And with nearly every federal agency now led by Trump-allied conservatives, the administration can simply stop enforcing a slew of civil rights rules designed to help minorities and the poor.
This rapid backsliding does not prove Obama was foolish to rely upon agencies to carry out his civil rights agenda: Given congressional Republicans’ intransigence, agencies provided him with his only tool to bend the law toward justice. And some of Obama’s accomplishments did run through Congress, including the expansion of the Violence Against Women Act and federal hate crimes laws to cover LGBTQ people, as well as the repeal of Don’t Ask, Don’t Tell. These are lasting triumphs.
But the flurry of executive action that defined Obama’s second term—his famous use of “a pen and a phone” to work around Congress—is much less resilient to attack. The Trump era has laid bare the peril of protecting civil rights through executive orders, agency rule-making, and memoranda. The resulting reforms may be great while they last. But there’s no guarantee that they’ll last much longer than the administration that created them in the first place.