What Will Regulatory Policy Look Like Under President Biden?

The incoming Biden administration is expected to take action soon after Inauguration Day to reverse much of the Trump administration’s deregulatory agenda of the last four years, but undoing any last minute regulations could be difficult if there is a divided Congress. 

Shortly after his inauguration in January 2017, President Trump issued an executive order that required agencies to cut two regulations for every new one issued, launching a term filled with regulatory rollbacks affecting the environment, immigration and other policy priorities. The administration’s efforts did not cease during the novel coronavirus pandemic, when the White House sought to use deregulation to boost the economy during the resulting recession. However, the administration’s efforts had mixed success, according to a report by professors from Rutgers University and University of Pennsylvania Law published on November 2. Nevertheless, experts predict changes upon the swearing in of President-elect Joe Biden.

The Biden administration’s “first six months to a year will be taking up the issues [such as] figuring out which Trump administration initiatives are going to require significant effort to reverse and putting the effort into those,” said Stuart Shapiro, associate dean of faculty at the Bloustein School of Planning and Public Policy at Rutgers University and one of the authors of the report. “The Trump administration has been glaringly weak in its analysis in its regulations and its following of the Administrative Procedure Act. You would expect the Biden administration, which will be populated with professionals who have probably been around the block a couple of times to be much more careful and much more thorough in doing it.” 

He added that the Biden administration will “certainly involve the civil servants more than the Trump administration has.” 

From now until Inauguration Day, Biden transition’s transition team will be reviewing the Trump administration's regulations and deciding what they want to undo, Susan Dudley, director of the Regulatory Studies Center at The George Washington University, who was Office of Information and Regulatory Affairs administrator from 2007 to 2009, told Government Executive. 

Upon Biden taking the oath of office at 12 p.m. on January 20, his transition team will likely stop any regulations before they’re published in the Federal Register. Anything that was a “real priority” for the Trump administration will likely already be published, but the Federal Register may “get backed up,” since there tends to be many last minute regulations, she said. Biden will then likely issue a memo to the agencies that “basically says stop the presses … until my team has a chance to evaluate.” 

He will possibly revoke the “two for one” executive order immediately, Dudley added. While Biden could revoke any executive orders––which Trump used excessively––any regulation changes must go through the protocol outlined in the Administrative Procedures Act. Professors Lisa Parshall and Jim Twombly noted in their new book, “Directing the Whirlwind: The Trump Presidency and the Deconstruction of the Administrative State,” that the Trump administration appears to have had more success in using executive orders than through the regulatory process. 

Once Congress is back in session, Biden could use the 1996 Congressional Review Act to undo any regulations done in the last 60 legislative days of the prior Congress (referred to as “midnight regulations.”) While Democrats maintained control of the House, the fate of the Senate will come down to two runoff elections in Georgia set for January 5, so that will indicate how successful he could be in using the act.  

The rush to push out regulations during a lame duck session is not unusual, however “nothing about this administration has been typical or normal,” said Shapiro, who expects an even greater rush and for the support analysis to have an “even greater lack of analysis and lack of responsiveness.”

Shortly before Trump came into office in January 2017, the House passed legislation that would allow Republicans (now in this case, Democrats) to speed up the process to invalidate regulations from the Obama administration. However, the law was never enacted since the full Senate never voted on it. 

“The policy team, the transition policy teams, are focusing now very much on executive power,” a source close to Biden told The Washington Post. “I expect that to be freely used in a Biden administration at this point, if the Senate becomes a roadblock.”

Lastly, Dudley said that since many of Trump’s regulatory actions are being challenged in court the Biden team could settle the arguments. Although the Trump administration was aggressive in its deregulation, it has not had as much success in court.

“The overall success rate right now is 15.6%” for cases on deregulation or policy making, which “stands in stark contrast to prior administrations,” Bethany Davis Noll, litigation director for the Institute for Policy Integrity at the New York University School of Law, said in a joint article by The Center for Public Integrity and Vox published on October 30. “Prior scholars have looked at prior administrations and just consistently, across the board, have found that agencies win 70% of the time, more or less.”

Dudley imagines regulatory policy under the Biden administration will reflect that of the Obama administration, which had much more regulatory activity than previous administrations, dating back to the Reagan era. 

Biden’s campaign website promised to institute regulations for “climate-friendly farming” and lobbyists' disclosures. Also, In July, he said he would reverse 100 of the Trump administration's environmental and public health regulation rollbacks if he were elected, as The Washington Post reported.

Shapiro said the way to go about that would have to be determined on a case-by-case basis, depending on the specifics of the regulation and any potential for litigation. For example, Obama’s Clean Power Plan rule was being challenged in court when Trump came into office and reversed it. So if Biden wants to bring it back he will have to resolve that litigation, he noted.

In 71 days we will see how Biden’s regulatory policy starts to come to fruition. 

“We are going to [see] a transition unlike anything we've seen before,” Shapiro said in an interview before the election. “Transitions are crazy times under the best of circumstances and these are not going to be the best of circumstances.” 

Three days after the election, the General Services Administration has yet to ascertain a winner––despite many calls to do so––which precludes the Biden team from sending teams into agencies, obtaining briefing books prepared mainly by career civil servants and accessing nearly $10 million in funds.