The explicit pro-regulatory shift by the Biden White House Office of Management and Budget (OMB) has entailed abandonment not merely of Trump’s streamlining posture, but of prior supervisory regulatory review as such. Rather than act as a watchdog (albeit never having been that strong of one), the Office of Information and Regulatory Affairs (OIRA) at OMB now joins the thousands of regulators to intervene on behalf of what progressives regard as new regulatory benefits.
In this brief essay, we go beyond that observation to take a look at particular instances of reversals of Trump by the Biden administration. A later survey will explore the erosion of disclosure and sunshine with respect to agencies’ rulemaking procedures and issuances of sub-regulatory directives.
Even during the four years of the Trump administration, the limitations of solo executive branch streamlining were apparent. The former president’s “one-in, two-out” Executive Order 13771 met a resistant career bureaucracy. after the 2020 election, incoming administration made its “choreographed sprint” for a “post-Trump reset.” One of Biden’s first acts included a presidential memorandum repudiating the Trump agenda called “Modernizing Regulatory Review.”
While under Trump, agencies like the Federal Communications Commission, the Environmental Protection Agency, and the Consumer Financial Protection Bureau were led by pro-liberalization appointees, those folks don’t stick around; the careerists do. Presidents come and presidents go, but none systematically and in such prolonged fashion (his own contradictions notwithstanding) attempted to freeze and roll back a subset of rulemaking in a way comparable to Trump. Still, there always existed a certain impotence to Trump’s entire streamlining enterprise that will continue to plague any future effort centered at the executive branch.
As if entrenched agency resistance were not enough, the 1946 Administrative Procedure Act (APA) requires adherence to public notice-and-comment processes for issuing a rule, but also for rolling them back. The APA also permits rulemaking without public input via the “good cause” exemption where notice and comment is deemed “impracticable, unnecessary, or contrary to the public interest.” Agencies are fond of using good cause, but primarily to add, not subtract. And under the judicial philosophy of Chevron deference, courts typically yield to agencies’ “rational basis” interpretations of the enabling statutes under which they write their rules.”
Reinforcing “open staff resistance” and Biden’s undoing of Trump’s streamlining by executive actions, one observes externally aligned media and progressive academics. Corporations, too, enticed by subsidies, make strategic peace with re-regulation but indicate in some instances that they never wanted reductions in the first place.An example is the wide private sector embrace of the bipartisan infrastructure law; another is the corporate push for subsidies to “compete” with China.
Trump’s attempts at recodification of some rules, such as the Waters of the United States and Clean Power Plan rules or even the mere creation of a new product class for dishwashers capable of cleaning were years-long endeavors that are being re-reversed by Biden. In light of the foregoing, here are a few additional ways some instances of Trump’s regulatory streamlining have been reversed under Biden. The hope here is that future reformers take note of their implications for scaling back the administrative state.
Elimination of Trump Streamlining via the Congressional Review Act. Alongside freezing unfinished Trump deregulatory actions in the pipeline, Biden got backup from the Democratic Congress on overturning three of Trump’s already enacted streamlining rules using the Congressional Review Act. This law enables Congress to reach back to rules 60 “legislative days” old. The 2021 CRA repudiations included a “true lender” rule from the Office of the Comptroller of the Currency concerning national banks and savings associations (S.J. Res. 15), an Equal Employment Opportunity Commission rule related to the commission’s conciliation procedures (S.J. Res. 13), and a methane rule from the Environmental Protection Agency (S.J. Res 14).
COVID Relief Overturned. Trump’s Executive Order 13924 on “Regulatory Relief to Support Economic Recovery,” enabling limited use of emergency powers to aid COVID-19 relief and economic recovery, was revoked in February 2021. The idea had been to broaden the crisis-driven medical crisis regulatory relaxation ethic already under way, and apply it to relieving the economic crisis response more generally. There were calls to make waivers and regulatory suspensions permanent. E.O. 13924 also suspended penalties, eased permitting, and extended leniency for businesses exhibiting “good faith” compliance efforts. Biden also withdrew the Food and Drug Administration’s FDA premarket notification exemptions for certain classes of medical devices that were relaxed during the pandemic. The economic relief order Biden did issue, in contrast to Trump’s, consisted not of business relief but of easing access to government relief spending programs.
To be fair, Biden did ultimately retain COVID-related limited earnings-retention requirements for credit unions (probably anticipating the deposit of stimulus checks), and allowed truckers drive more hours and young “next generation” truck drivers to help aid supply chain disruptions. Promotion of CARES Act-based rural telehealth funding continued, but this also entrenches federal oversight of a new program that can be expanded later. As for good moves on trade and economic relief, Biden relaxed some restrictions on European steel and aluminum, but tariffs on Chinese goods remain. While not COVID-related, the FDA under Biden also issued a rulemaking to make certain hearing aids available over the counter. Alas, these effectively complete Biden’s 2021 regulatory streamlining inventory.
Environmental Regulatory Easing Revoked. Least surprising among prominent Biden reversals was that most of Trump’s easing of environmental restrictions was stopped or slowed. Some of Trump’s energy, environment, and infrastructure-related orders were revoked in Biden’s day-one “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” directive, which also revoked the Keystone pipeline permit. There were 104 actions specifically listed by Biden for review and likely restoration, the bulk from the Environmental Protection Agency and the Interior and Energy Departments. In addition, Biden rejoined the Paris climate agreement from which Trump had disengaged, prepared a separate treaty submission on “super pollutants,” and recommended resurrected moratoria and price increases for oil and gas leasing on public lands while appealing to OPEC to boost production. Biden later released 50 million barrels of oil from the Strategic Petroleum Reserve, demonstrating the potential large costs of environmental extremism. Those concerns over domestic availability of fossil energy have escalated in 2022 with the outbreak of war between Russia and Ukraine. Biden then used his State of the Union address into an occasion for blaming oil and gas companies for price increases, and for pretending that the forced shift to unreliable sources of energy is the solution to energy shocks. (See “President Biden Announces Actions to Continue to Hold Russia Accountable.”)
The Biden administration is also restoring aggressive “social cost of carbon” (and nitrous oxide and methane) emission evaluation processes. This alchemy is intended to monetize “damages associated with incremental increases in greenhouse gas emissions … to include changes in net agricultural productivity, human health, property damage from increased flood risk, and the value of ecosystem services.” These slippery measures will enable the federal government to overstate the social benefits of its costly interventions to reduce emissions.
Biden’s EPA and National Highway Traffic Safety Administration also restored California’s ability to institute stricter vehicle emission standards under the Clean Air Act, a waiver that had been withdrawn under Trump. In addition,and Obama-era mercury rules are being reinstated. Also under “re-revision” are the Interior Department’s Fish and Wildlife Service rules defining what counts as “habitat” as well as which ones are “critical.” Perhaps the emblematic cherry on top was Biden’s restoration of Bears Ears and Grand Staircase-Escalante national monuments over the objections of Utah’s own congressional delegation.
On the energy conservation front, regulatory easing was reversed and new pursuits launched that, as Ben Lieberman put it in The Wall Street Journal, present a regulatory burden for every room in one’s house to such an extent that, “By one estimate, a forced switch away from natural gas [to electric appliances] would cost the average household $750 to $910 annually in higher energy bills.” The Biden administration even undid the Trump adminstration’s showerhead deregulation.
Labor Regulatory Easing Revoked. “Re-reversals” on the Department of Labor front included overtime pay, a “joint employer standard” on working conditions, and revocations of employers’ options to pay tipped employees less. The Labor Department also issued a final rule raising to $15 the hourly wage that federal contractors pay to workers, implementing an April 2021 executive order.
The foregoing “inventory” represents just a sample of the rule reversals underway, and none of the new initiatives. For tomorrow’s reform-oriented policy makers, the whiplash-inducing flip-flopping by agencies affirms the administrative state’s unsuitability in a limited-government, consittutional, rule-of-law setting. To be sure, Trump had plenty regulatory impulses of his own, some of them shared with Biden. For example, both share a proclivity for trade restrictions and “Buy American” direcitvesk, for spending trillions on infrastructure, for antitrust and media regulation, for price controls and transparency mandates, for increased federal land holdings and moratoria on oil and gas drilling, and for certain social policies.
We enter a new era now, though. Where Barack Obama unapologetically wielded the “pen and phone” to expand federal reach over private affairs, Joe Biden has even more ambitiously promised a “whole of government” approach to the climate “crisis” and to an equity agenda. Post-COVID, Biden enjoys the ease of shooting the administrative state rapids on a buoyant raft inflated by the American Rescue Plan, an American Jobs Plan that partly materialized in the form of the Bipartisan Infrastructure Law, and “Build Back Better” spending and regulatory interventions.
Biden’s executive directives are indicative that no lessons have been learned from the past about political failure. Aggressive interventions are proposed not just for modern concerns and new economic sectors, but for problems caused and deepened by prior interventions. These include pandemic non-preparedness, infrastructure weakness and inflexibility (lead pipes, crumbling bridges, etc.) and lingering supply chain disruptions.
A glance at the size and scope of the central government today makes clear that the Reagan’s inaugural address sentiment that “Government is not the solution to our problem, government is the problem,” is not merely sloppily unheeded but consciously repudiated. There is more to be said on much of this; next we’ll take a look at ways regulatory disclosure has been eroded during Biden’s first year.