Biden Seeks to Halt or Delay Trump’s ‘Midnight Regulations’

Shortly after the swearing in ceremony, the Biden administration issued a memo to agencies on Wednesday seeking to halt or delay last minute or “midnight regulations” from the Trump administration. 

Congress and the president can use the “Congressional Review Act” to undo any “midnight regulations” issued during a certain look-back period. This year August 21, 2020, is the cutoff and the Transportation Department, Environmental Protection Agency, and Commerce Department have the most eligible rules in the window, according to The George Washington University’s Regulatory Studies Center. It will likely be much easier for Biden to use this power now that Democrats control the Senate by a slim majority, and the House. 

The “freeze” memo “will pause any new regulations from moving forward and give the incoming administration an opportunity to review any regulations that the Trump administration tried to finalize in its last days,” said the transition team. It “directs all agencies to confer with the director of [the Office of Management and Budget] before renewing any regulatory activity.” It was sent by Ron Klain, assistant to the president and White House chief-of-staff. 

“Should actions be identified that were undertaken before noon on January 20, 2021, to frustrate the purpose underlying this memorandum, I may modify or extend this memorandum, pursuant to the direction of the president, to request that agency heads consider taking steps to address those actions,” it reads. 

Additionally, Biden issued a presidential memorandum withdrawing Trump’s regulatory process executive orders “to remove those needless obstacles to regulating in the public’s interest,” said the transition team. Biden will also “direct the director of the OMB to develop recommendations for improving and modernizing regulatory review,” which “will create a process to advance regulations that promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations.” 

The transition team shared a non-exhaustive list of Trump-era regulations and guidance documents that the Biden administration intends to review in order to further its executive order on climate change, public health and scientific integrity.

Guidance documents can be withdrawn immediately, but most of the regulations not subject to repeal under the “Congressional Review Act” will have to be undone through a new notice and comment process. Biden will also have to resolve any litigation involving the rules. 

Biden tapped Neera Tanden, president of the liberal think tank Center for American Progress, to be OMB director. Rob Fairweather, a deputy associate director at OMB under Trump, will serve in an acting capacity until she is confirmed. Biden hasn’t named a nominee for administrator of the Office of Information and Regulatory Affairs, a division of OMB.

“Biden is signaling a bold and aggressive regulatory agenda to combat the multiple crises facing our country and undo the enormous deregulatory damage caused by Trump,” said Amit Narang, regulatory policy advocate for the nonprofit group Public Citizen, in a statement on Wednesday. 

Deregulation was a cornerstone policy of the Trump administration to tackle immigration, job growth, the coronavirus pandemic and other policy priorities. However, many regulatory rollbacks have not held up in court and, for the second year in a row, the administration did not meet its goals for rolling back two rules for every new one issued (as mandated by a January 2017 executive order) in fiscal 2020. 

Nevertheless, the Trump team finalized many controversial regulations during its last few months, such as getting rid of the use of “secret science” at the EPA and clarifying religious protections for federal contractors, which many critics argued will allow for discrimination. Additionally, President Trump issued an executive order on Monday requiring senior political appointees, not career officials, to sign off on regulation changes. 

“We look forward to a Biden administration that restores integrity to our regulatory process and ensures that agencies are working for the public interest, and not for the corporations they are supposed to regulate,” said Narang.