Report: Biden Administration Could ‘Freeze’ Additional Trump Regulations

The Biden administration could “freeze” at least 25 more regulations issued by the previous administration due to promulgation errors committed by Trump officials, according to a new analysis. 

Public Citizen, a consumer advocacy nonprofit, published a report on Monday about a group of last minute or “midnight” regulations from the Trump administration. On January 20, White House Chief of Staff Ron Klain issued a memo pausing any pending regulations from moving forward before the Biden administration has a chance to review them. 

While the Trump administration championed deregulation, many rollbacks didn’t hold up in court and the administration didn’t always meet its goal of eliminating two regulations for every new regulation issued. Nevertheless, agencies finalized dozens of new regulations during Trump’s last few weeks in office (as is the case with most outgoing administrations), many of which were seen as controversial. 

Klain’s memo freezing last-minute regulations does not apply to those that have already taken effect (meaning those that have been published in the Federal Register and submitted to the House and Senate). The Congressional Review Act “requires agencies to delay the legal effective date of the ‘major’ regulations by 60 days, but again only after the regulation has been published in the Federal Register and submitted to both houses of Congress,” Public Citizen wrote. 

Because the Trump administration violated provisions of the CRA, “President Biden has the ability to ‘freeze’ or pause potentially up to dozens of deregulatory actions that Trump issued at the very end of his term,” said the group. These include “some of the most egregious roll backs of protections for consumers, LGBTQ communities, immigrants, and endangered species.” 

Specifically, the violations included regulations not being sent to Congress or only being sent to one chamber, or submitted to Congress late—after January 20. Some that were submitted by then didn’t take legal effect until later because they are deemed “major” rules and thus subject to the 60-day requirement set out in the Congressional Review Act, said the report.  

A rule is considered “major” if it will likely have an annual effect on the economy of at least $100 million, lead to significant increases in costs or prices for consumers, industries, government agencies or geographic regions or have “significant adverse effects” on the employment, investment or productivity of U.S.-based enterprises competing with foreign companies in domestic and export markets, according to The Congressional Research Service.  

The majority of regulations flagged by Public Citizen are on energy and the environment, but there are others affecting consumer and civil rights, immigration, labor, agriculture and finance. 

Klain said in his memo that if there were any actions before Biden took office to “frustrate the purpose underlying this memorandum,” then he might modify or extend it. Public Citizen noted that similar memos from previous administrations haven’t stipulated this and it hopes the Biden administration will expand its regulatory freeze to include those questionable regulations newly identified by the group. 

Republicans previously applied this logic when they controlled both chambers of Congress during the first half of the Trump administration, Public Citizen noted.

“Sen. Pat Toomey (R-PA) argued that because a guidance document issued by the Consumer Financial Protection Bureau in 2015 had not been submitted to Congress under the CRA, it had never taken legal effect,” said the report. “This allowed Congress to use the CRA to repeal the guidance document in 2018 three years after it was issued.” The law applies to some types of guidance documents, in addition to rules. 

Public Citizen acknowledged they’ve called for the repeal of the CRA in the past—they believe it leads to too much corporate and political influence in the regulatory process––however, it “is still the law.”

The Office of Management and Budget did not respond to a request for comment on the report. 

The Congressional Review Act creates an additional opportunity to repeal last-minute Trump regulations as well: Congress and the president could undo them during a prescribed look-back period.

The regulations identified in the report “can still be challenged using the CRA, but they are on a separate ‘clock’ from the midnight rules that were carried over from last Congress,” Amit Narang, regulatory policy advocate at Public Citizen, told Government Executive. “Any rules that were frozen but not yet repealed by the Biden administration can be challenged under the CRA. It's not an either/or situation.” 

The window to start repealing regulations from the prior Congress started on February 5 and closes in 60 legislative days. So far, there hasn’t been any action on this, although talk about using the act in such a way “flared in early January, after Democrats won the Georgia Senate races and secured the chamber majority,” but has since “subsided,” E&E News reported.

Democrats have just a 10-seat advantage in the House and an even narrower majority in the Senate (50-50, with Vice President Kamala Harris breaking tie votes), which could make congressional action difficult.