One Nation, Ungovernable? The Bipolar Unified Agenda of Federal Regulations

As we lurch from crisis to crisis, it is interesting to compare the way one administration’s philosophy of government response to both shock and normalcy compares with that of another. One way to do it is by comparing approaches as embodied in the twice-yearly “Unified Agenda of Federal Regulatory and Deregulatory Actions.”

During the Trump blip, the entire executive branch at one point operated under an instruction from then-Office of Management and Budget (OMB) Director Mick Mulvaney that deregulation should be their “highest priority.” That was pre-pandemic, occurring during the heights of Trump’s “one-in, two-out” campaign. Even after the contagion hit and federal spending was off to the races, some of the deregulatory sentiment remained, particularly with respect to certain attempts to eliminate never-needed regulation and use “emergency powers” to foster economic recovery.

Since a comparable federal approach is to regulatory streamlining is not a part of the Biden agenda and unlikely in the foreseeable future, here we quote at length from the fall 2020 introduction to the Regulatory Plan component of Trump’s final Unified Agenda:  

Under the President’s direction to focus all available resources on the fight against COVID-19, agencies rapidly identified and streamlined, suspended, or eliminated regulations that stood in the way of the most effective response to the virus. Agencies enabled innovative medical strategies, such as widespread deployment of telemedicine; removed restrictions on scope of practice to increase the supply of qualified medical staff; allowed swifter transportation of critical goods such as food and medicine; and moved many in-person agency services to electronic platforms. The success of these temporary flexibilities called into question the need for some of the waived regulations in the first place; pursuant to President Trump’s Executive Order 13924 and in order to support America’s economic recovery, agencies are pursuing or considering approximately one hundred deregulatory actions to make many of these flexibilities permanent.

This sentiment is icky to the permanent bureaucracies, which were biding their time. They got their wish with Biden’s revocation of Trump’s E.O. 13924 on emergency waivers, along with most every other Trump streamlining initiative. In the blink of a political eye, the same institution known as OMB did a 180-degree turn, affirming in the Spring 2021 Unified Agenda that the highest priority is “to build back better and more equitably.”

With Biden, the Agenda has taken a leap backward in oversight and a leap forward in activist central government, with the OMB’s Office of Information and Regulatory Affairs’ (OIRA) acting director pointedly digging at the prior administration upon the release of the Spring 2021 Agenda: 

[T]he Unified Regulatory Agenda continues rolling back the obstacles to recovery, equity, and sustainability that the prior Administration put in place. … The last four years offered a clear lesson on what happens when the Executive Branch fails to uphold its responsibility to protect the American people.

The same sentiments were echoed later in the Fall 2021Agenda, which further delivered on Biden’s call for mobilization and shifting of gears toward activist government. Those calls were articulated in Biden’s January 2021 directive called “Modernizing Regulatory Review,” which instructed the Director of OMB, in consultation with departments and agencies, to develop:

a set of recommendations for improving and modernizing regulatory review. These recommendations should provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.

OMB’s review processes in this new setting are also to “fully account … for regulatory benefits that are difficult or impossible to quantify, and [avoid] harmful anti-regulatory or deregulatory effects.” There no mention of regulatory costs, as the memorandum seeks regulatory review that “serves as a tool to affirmatively promote regulations.” The new architecture is to “consider ways that OIRA can play a more proactive role in partnering with agencies to explore, promote, and undertake regulatory initiatives that are likely to yield significant benefits.”

This newfangled stance dispenses not only with Trump and the Department of Justice’s then-contemporaneous approaches to “Modernizing the Administrative Procedure Act,” but also with the historical approach of balance-oriented OIRA review and oversight altogether.

OIRA is no longer the watchdog, and there is none to replace it. In announcing the Fall 2021 Regulatory Plan and Unified Agenda this past December, OMB proclaimed not its effectiveness in performing regulatory oversight, but its engagement in reinforcing regulation. OMB titled the statement accompanying the Agenda’s release “A Regulatory Plan to Continue Building Back Better,” stating that: 

This Administration is using every lever at its disposal—including regulatory action—to deliver on the President’s priorities, including containing the pandemic, driving a durable economic recovery, advancing equity, and combating climate change. … Between this regulatory agenda and the next one in spring 2022, agencies will also be developing plans for implementing the Infrastructure Investment and Jobs Act (IIJA), historic legislation to rebuild crumbling infrastructure, create good paying jobs, and grow our economy.

The infrastructure bill OIRA references, along with related initiatives, will generate rules and “regulatory dark matter” for generations to come. The introduction to the fall Agenda further captured the shift to Biden’s “whole-of-government” activism: “We are proud to shine a light on the regulatory agenda as a way to share with the public how the themes of equity, prosperity and public health cut across everything we do.” There is an equally ambitious “whole-of-government” climate agenda, that, as just quoted, OIRA will advance rather than question.

There have always been agency boasts contained in Regulatory Plans, as well as slippery goals that somehow always resolve in the direction of more government. But the aggressiveness and disdain of other views we see today, the lack of humility, is new. Arriving to this point is not mysterious, however, since progressive appointees’ prior writings on reformatting OIRA are reflected in the new Biden directives and Agenda framings.

Going back further, the seeds for what is happening now were sown with the replacement of the Reagan-era regulatory review E.O. 12291 stipulation that potential benefits “outweigh” potential costs with the Clinton E.O. 12866, which merely called for regulatory benefits to “justify” costs. These and other progressive displacements of limited government have opened  the door to societal engineering in climate, equity, and the averting of eyes from “transfer” or “budget” expenditure rules as being regulatory in nature at all.

For future reformers to have any lasting effect, serious lessons will need to be learned from the Trump experiment with permanent Washington. Otherwise, as the Unified Agenda now documents for posterity, starry-eyed appointees to head federal departments and commissions may enjoy some limited success in halting the administrative state’s march, but things will resume as if nothing had happened once progressives are back in charge in the executive branch.