Chapter 1: Biden’s whole-of-government push
Let’s be clear, Kamala and I came into office determined to transform how the economy works—change the way it literally functions.
—Joe Biden, September 23, 2023
Prior editions of Ten Thousand Commandments extensively surveyed the Biden administration’s whole-of–government campaigns and the role of executive actions, rules, and memoranda in their pursuit, which the Trump administration is now in the process of reversing. The whole-of-government philosophy advocates using every possible lever of government to advance certain policy objectives. In practice, that means that agencies, instead of being guided solely by their core missions, also pursue goals such as equity, environmental justice, climate change, and rallying transformations like the care economy. This management approach consolidates power in Washington, further undermining the federalist system of government.
Under Biden, a “Modernizing Regulatory Review” executive order raised cost review thresholds and instigated a rewrite of Circular A-4 guidance for cost–benefit analysis. Such developments weakened the Office of Management and Budget’s watchdog role.
New National Environmental Policy Act guidelines and the launch of the American Climate Corps expanded environmental regulation and activism, an agenda amplified by transforming financial agencies like the Securities and Exchange Commission into environmental regulators pursuing radical climate objectives with costly reporting requirements. Biden competition policy interventions included price controls, junk fees, targeting of online user reviews, and more. In whole-of-government fashion, federal subsidies were weaponized to impel compliance actions not demanded in statute and to rationalize even more stringent regulation.
Public–private partnerships expanded in fields ranging from communications to electric vehicle charging stations, the latter leading to minimal construction. Hundreds of billions of dollars of defense spending were repurposed toward Buy American regulations, foreign investments, and escalation of cross-agency supply-chain interference.
Biden invoked emergency powers to manage the likes of supply chains and artificial intelligence. Anti-privacy and domestic surveillance escapades are ongoing, via Department of Homeland Security shadowing, data collection on small-business credit applications, heightened screening at airports, and mandates to allow government to remotely disable automobiles. The Federal Reserve launched its FedNow instant payment system in competition with the private actors it regulates and worked to undermine the anonymity enabled by cryptocurrencies.
Under Biden, censorship took the form of funding suppression of what the federal government regarded as mis-, dis-, or mal-information and the restriction of access to government databases, such as at the National Institutes of Health, if research is suspected of not adhering to official narratives on health, climate, or other policies.
Alongside these are traditional nanny–style proposals to ban menthol cigarettes, hair relaxers, and the Red No. 3 food dye. Some others are touched on in the rules, executive actions, and guidance documents surveyed in the following pages.
Intentionally or not, Congress enabled Biden’s agenda. Biden’s consolidations and cartelization were amplified by sweeping multi-trillion-dollar legislation. Funds from those bills are still being handed out, and those dollars still come with regulatory strings attached. Washington boasts of being the world’s largest purchaser of goods and services, not infrequently benefiting foreign firms, as well as politically connected and politically popular groups, as recent revelations from the Department of Government Efficiency confirm. Congress and the president also collaborate on an enormous volume of grants-in-aid to states and exploit emergency powers at every opportunity.
In this setting, governance by guidance and nudges can replace much traditional lawmaking. This may explain some of the recent dips in rulemaking counts, even as regulatory costs and Federal Register page counts grow. Having made progressive initiatives so numerous and crosscutting, Biden’s whole-of-government approach means that even the demise of an agency would not derail the underlying agenda.
Policymakers must appreciate that minor rollbacks or traditional administrative state reforms are no match for the regulatory seeds that have already been planted, awaiting future fertilization. This may be a reason Trump’s immediate abolition of diversity, equity, and inclusion offices and positions was so thorough, as far as attempted executive actions go. But a future executive could flip the script again. Along with slashing spending to the bone, Congress must follow through and terminate entire departments, agencies, commissions and programs. It must also restore state, local and community sovereignty, not merely reform federal regulation.
Biden and Congress’s regulatory liberalizations were minimal compared to the additions. Liberalizations include permission for hearing aids and blood glucose monitors to be sold over the counter, the termination of the Board of Tea Experts, certain extensions of COVID-19 telemedicine flexibilities for practitioners and patients, potential authorization of ownership of certain non-releasable or captive-bred migratory birds and eagles for teaching purposes (albeit amid crackdowns on ownership and display of big cats), the removal of certain restrictions on introducing experimental populations of endangered and threatened species beyond their historical range, and the removal of the Nelson’s checker-mallow from the Endangered Species List.
Biden also signed the Providing Accountability Through Transparency Act of 2023, now Public Law 118-9. This law requires that agencies, “in providing notice of a rulemaking . . . include a link to a 100-word plain language summary of the proposed rule.”