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.
Seven months later, it seems safe to say that I was very wrong.
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…