The Fall 2021 Unified Agenda of Federal Regulations Delivers on Biden’s Promises of Government Activism

Each Spring and Fall since the 1980s, federal agencies have highlighted some of their regulatory priorities in the Unified Agenda of Federal Regulatory and Deregulatory Actions.

The little-known Agenda provides a freeze-frame of rules moving through the pipeline at diverse states of urgency, along with showcasing a subset of rules recently finalized. Elections or other political motives can affect prioritization and cause agencies to accelerate certain rulemaking or abstain and report fewer rules. These can affect the Agenda’s content and heft. But that may be less of a factor in the Biden administration, never subtle in either its spending or regulatory ambitions during the campaign.

On the spending side and in the context of the Covid pandemic, the Biden administration early on promised, along with with other G7 leaders, to keep the “taps open” and “go big.” In fulfillment, Biden’s $6 trillion budget proposal, plus the Build Back Better spending package being debated in the Senate, all amid a debt-limit increase for a nation nearly $30 trillion in the hole, reflect a nation whose leadership believes in spending its way to prosperity.

Alongside these spending ambitions, the White House regulatory Agenda is envisioned as “a way to share with the public how the themes of equity, prosperity and public health cut across everything we do to improve the lives of the American people.”

The Agenda has roots in normalcy like paperwork reduction, regulatory oversight and balancing costs and benefits, but that’s not the world we’re in today. The Office of Management and Budget’s Office of Information and Regulatory Affairs is morphing into a tool of progressive activism by advancing rather than moderating agencies’ plans to “Combat Housing Discrimination,” “Tackle the Climate Crisis,” and the like. Rather than tapping the brakes, the OMB is energized by the “still hard work ahead to build back better and more equitably.” These are not limited-government campaigns by any stretch.

Indeed, Biden regards the entire regulatory streamlining program of the former Trump administration as, “harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront … problems.” As is well known by now, a series of Biden executive orders revoked the Trump entire program to contain the administrative state.

Volumes have by this time been written about the perils of the executive branch pen-and-phone and the dangers of the mindset prepared to use every lever available to carry out its agenda even without the benefit of the elected Congress.

During Trump’s tenure by contrast, the normally unremarkable Agenda was accompanied by OMB boasts of meeting, albeit loosely, “one-in, two-out” streamlining goals for agency rulemaking. Trump’s boasts are of course history now, but the flip-flopping of mission at OIRA is one of the reasons it cannot perform its oversight role and needs to be replaced.

Risk of whiplash notwithstanding, let’s look at where we are now in Fall 2021. The Agenda breaks down a cross-section of rules from over 60 federal departments, agencies, and commissions this way:

Active Actions: Pre-rule actions; proposed and final rules. These represent the pipeline times anticipated or prioritized for the near future;

Completed Actions: Actions completed during approximately the previous six months; and

Long-term Actions: Anticipated longer-term rulemakings beyond 12 months.

The Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions finds 68 federal agencies, departments, and commissions floating 3,777 rules and regulations at these active, just-completed, and long-term stages. (Compared to 3,959 in Biden’s Spring edition).

Trump’s counts were comparable but with one big difference. A year ago, 653 rules in Trump’s Fall 2020 pipeline were designated “Deregulatory” for purposes of Trump’s “one-in, two-out” Executive Order 13771 directive, yielding a lower “net.” Unsurprisingly that designation has been deleted altogether by Biden, being non-applicable to his agenda. A positive takeaway is that it affirms that OIRA cannot help in regulatory streamlining, because it could have maintained the distinction in its database of its own accord.

The rules appearing in the Unified Agenda sometimes may hang at the same stage for years, or they may reappear in subsequent editions at later stages before dropping off after completion. In the Fall 2021 edition, 495 of the Active actions are appearing for the first time, compared to 610 in the Spring.

Agencies’ regulatory activities are not constrained what they publish in the Agenda unless an administration were to explicitly require it. Congress could insist, but it has not. Under some administrations, presenting more speculative longer-term rules is encouraged, other times not. That subjectivity is further illustrative of the administrative state’s policy reversals like those seen from Obama to Trump, and now with Biden, whose regulatory ambitions and propensity to coerce exceed those of Obama.

Read the full article at Forbes.