Edward Scissorhands and Federal Regulatory Disclosure

Photo Credit: Getty

Recently, President Joe Biden proclaimed before the Business Roundtable’s CEO Quarterly Meeting on March 21 that there’s “going to be  new world order” and that “we’ve got to lead it,” and “unite the rest of the free world in doing it.”

It is unclear what he meant by “we.” The Heritage Foundation Index of Economic Freedom and the Fraser Institute/Cato Institute Economic Freedom of the World rank the U.S. 20th and sixth, respectively.

Even those U.S. rankings are destined to decline, given the administration’s pursuit of “whole of government” regulatory schemes. Rather, Biden has set about mobilizing the regulatory might of the entire executive branch in service of what he deems “equity,” the “climate crisis,” and a range of industrial policy incursions deemed “competition policy.”

The Trump-era regulatory streamlining framework, naturally, was first to go, along with the pre-Trump commitment to regulatory review at the Office of Management and Budget.

With these shifts, administrative  databases and information sources that were already suspect cannot be trusted; given that there is omission and slant. Trump’s—limited—achievements on regulatory streamlining are no longer readily available to observers, historians, chroniclers, or future reformers.

In addition to specific anti-Trump rule reversals at agencies and issuance of stricter new regulation (what progressives call “safeguards”), Biden has reversed regulatory liberalization and the ability of overseers to monitor what the administration and agencies do.Any deregulation-minded administration would need to go to extraordinary lengths to make lasting reduction in the regulatory machinery, since it is easier to unilaterally add than subtract.

With that framing, here is a non-exhaustive overview of some process changes and erosions in disclosure that affect all rulemaking.  

Regulated parties’ protections removed. Under Trump, agencies were temporarily headed by reform-minded appointees who took steps in the spirit of “rules for rulemaking” that went even beyond Trump’s umbrella one-in, two-out directive. Along with “bill of rights”-like public protections from potential regulatory overreach during the pandemic, a Trump executive order on “Ensuring Democratic Accountability in Agency Rulemaking” requiring an appointee rather than careerist to sign off on rules binding the public was revoked by Biden.

Deregulatory” rules’ designations gone. A novel side effect of Trump’s one-in, two-out program was the need to write rules that were actually deregulatory, and to keep track of them. A separate search category to isolate those “Deregulatory” rules (along with a handful of other categories related to Trump’s order) was created, but vanished in early 2021. There is, as of this writing, no apparent means of going back into the Unified Agenda of federal regulation databases’ “advanced search” function for any given Trump year and enumerating and itemizing the “Deregulatory” actions for any given agency or department, whether or not they were deemed significant. Also, while agency preambles and the Office of Management and Budget’s (OMB) introductions from the Trump years are retained on the Unified Agenda landing page, one can no longer find the Office of Information and Regulatory Affairs (OIRA) administrators’ detailed regulatory reform reports on “one-in, two-out.

Regulatory Dark Matter Newly Unleashed.The George W. Bush-era oversight of agency guidance documents was significantly enhanced by Trump’s October 2019, of Executive Order 13891, “Promoting the Rule of Law through Improved Agency Guidance Documents,” which required, after initial scrubbings and recissions of guidance that “should no longer be in effect,” the development of a “single, searchable, indexed database” at every executive branch agency for disclosure of guidance documents. Where guidance was retained or new guidance issued, the order required affirmation of its nonbinding nature and the development of procedures for the public to petition for revocation or alteration. Along with requirements for notice and comment and OIRA review, Trump’s order also directed that “each agency shall, consistent with applicable law, finalize regulations, or amend existing regulations as necessary, to set forth processes and procedures for issuing guidance documents.”

By September 2020, a number of agencies had established online portals as required by E.O. 13891 with over 70,000 documents. By the time Trump left office,agencies had issued final rulemakings on guidance procedures. Some agencies retain portals, but the pursuit of uniformity, never fully implemented, has been halted.

Among Biden’s first directives was the ditching of Trump’s executive order on guidance document portals and standardized rules regarding their issuance and treatment of the public. While Biden did allow for agencies to “identify reforms that will promote the efficiency, transparency, and inclusiveness of the interagency review process, and determine an appropriate approach with respect to the review of guidance documents,” he also directed agencies to get rid of their final rules on guidance (FROGs). Thirty-two FROG procedure rules were issued, and at the end of 2021, 20 had been “stomped.” Even without revocation, agencies already possessed ample ways to unilaterally undermine Trump’s guidance program deliberately or through neglect. Some U.S. Senators wrote to Biden regarding the deterioration in guidance document disclosures, but no public response to the complaint ever appeared.

Agencies’ Self-Annihilation of Internal Oversight/Streamlining Procedures.Some agencies adopted nearly verbatim language disavowing their prior positions in FROG repeals. In addition, agencies that had taken the initiative in instituting new regulatory fairness and oversight procedures under Trump have ditched them under Biden.

Justice Department Elimination of Fair Guidance Directives. Well before Trump’s executive order on guidance documents, his Justice Department had issued influential “guidance on guidance” with respect to its enforcement and fair treatment of the public by not binding anyone to sub-regulatory guidance documents. Characteristically, those directives were revoked by Attorney General Merrick Garland, who, whilenoting precedent that guidance cannot impose legally binding requirements, advised: “To the extent guidance documents are relevant to claims or defenses in litigation, Department attorneys are free to cite or rely on such documents as appropriate.”

Garland’s Justice Department also opposes the deregulatory Modernizing the Administrative Procedure Act and an opinion memorandum recommending application of regulatory review to independent agencies.

Environmental Protection Agency (EPA) Disavowal of Transparency and Cost–Benefit Disclosures.Trump-era EPA changes regarding “strengthening transparency” and limitations on “secret science” were important particularly given a wider replication crisis in academia and science, but there were vacated days after the Biden administration entered the White House. Also gone is an EPA rule, “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” Biden’s EPA issued an interim final rule in May 2021 rescinding it ,along with a press release entitled, “EPA Rescinds Unnecessary Benefit-Cost Rule.” Under Trump, the EPA had maintained its own “Deregulatory Actions” landing page. The link still works, but the following disclaimer now appears:

This is not the current EPA website. To navigate to the current EPA website, please go to www.epa.gov. This website is historical material reflecting the EPA website as it existed on January 19, 2021. This website is no longer updated and links to external websites and some internal pages may not work.

Department of Transportation Rulemaking and Guidance Policies Reversal.Perhaps the most detailed processes and “rules for rules” in the Trump administration came from the Department of Transportation under Secretary Elaine Chao, with the explicit codification of new procedures encompassing transparency, guidance, enforcement, and due process. These innovations (and the Department’s FROG procedures) were removed in an April 2021 rulemaking under Secretary Pete Buttigieg, in fulfillment of assorted Biden directives: 

This final rule removes the Department’s internal policies and procedures relating to the issuance of rulemaking and guidance documents from the Code of Federal Regulations.  In addition, this final rule removes regulations concerning the initiation and conduct of enforcement actions, including administrative enforcement proceedings and judicial enforcement actions brought in Federal court.

Sunsetting Rule Sunsetting at the Department of Health and Human Services. The Department of Health and Human Services under Trump issued a detailed Regulatory Flexibility Act-based rule on setting expiration dates for certain regulations, with requirements for retrospective review every 10 years to determine whether a rule has a significant impact on small entities and whether it is still needed or “redundant, overlapping, or inconsistent.”A proposed rule to withdraw the Trump sunset rule was issued in October 2021. 

The foregoing is a sampling of some of the transformations underway that illustrate the unstable nature of administrative governance. Interestingly, the Federal Communications Commission (FCC)—as an independent agency never bound by any Trump executive order—issued a January 2020 white paper enumerating steps taken on eliminating and modernizing outdated regulations. In addition, in November 2020, the Office of General Counsel and Office of Economics and Analytics released a joint memorandum reinforcing economic analysis at FCC called “Legal Framework and Considerations for Regulatory Impact Analysis.” As of this writing, these remain intact.