Top Ten Regulatory Policy Stories of 2020 — Part I

This was the year in which many of our worst fears about the Trump administration came to pass. Racial unrest reached a boiling point. The GOP’s attacks on our democracy leading up to and after the election will take decades to fix. And of course, tens of thousands of lives have been needlessly lost to an unprecedented pandemic.

It was an ugly year. Not surprisingly, most of 2020’s top regulatory policy stories were ugly too. In general, policy developments aligned against the goals of CPR’s new Policy for a Just America initiative: a sustainable future, a responsive government, and strong, effective protections for all people and the environment. The incoming Biden-Harris administration can put us back on the right track, but they have a lot of work ahead of them.

Here are the first five of this year’s 10 most significant developments affecting regulatory policy and public protections:

1. The Biden-Harris transition team sends mixed signals on regulatory policy. President-elect Joe Biden has yet to explicitly stake out his vision on regulation. For now, we are left to read the few leaves in the proverbial teacup. His plan to address climate change, which includes an ambitious regulatory agenda, suggests his administration’s embrace of regulation will be stronger than Barack Obama’s relatively tepid approach.
   
   Yet, Biden’s strong centrist inclinations leave many progressives (myself included) expecting disappointment. At times, these misgivings seem justified, such as when the incoming administration included on its Office of Management Budget (OMB) landing team an individual who supports Trump’s “two-out, one-in” executive order, which requires agencies to arbitrarily repeal two existing regulations for every new one they develop. To counter this, progressives are encouraging Biden and Harris to adopt a bold, constructive vision of regulation and to put a strong advocate of regulatory safeguards at the helm of the Office of Information Regulatory Affairs (OIRA), the White House agency that reviews proposed regulations.


2. Amy Coney Barrett gives the U.S. Supreme Court a solid anti-regulatory majority. In recent years, conservatives have brought to the high court a steady stream of cases aimed at kneecapping our regulatory system, and all fell just one vote short of achieving their desired result. In 2019, the Court narrowly rejected an effort to revive the so-called non-delegation doctrine, which supposedly bars Congress from delegating legislative powers to other entities. Also last year, Chief Justice John Roberts cast the deciding vote to limit — but not abolish — the Auer deference doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. These decisions preserved agencies’ ability to issue regulations that protect people and the planet.
   
   Republicans appear to have tackled this math problem by replacing the late Justice Ruth Bader Ginsburg with the conservative and aggressively anti-precedent Barrett. With five reactionaries unencumbered by institutional reverence on the bench, the Supreme Court is primed to grant big items on conservatives’ anti-regulatory wish list, including reviving the non-delegation doctrine, abolishing Auer deference, and gutting citizens’ standing to file suit to enforce the law.


3. Trump’s implements harmful executive orders on agency guidance. Over the past year, agencies have dutifully implemented a pair of executive orders that limit the development and use of guidance documents, which help clarify how regulations apply to businesses. Most notably, the U.S. Environmental Protection Agency (EPA) and others have created online databases to house their guidance documents — and rescinded an untold number of existing ones. They have also finalized new internal rules that strictly govern how they develop and use new guidance documents.
   
   These actions will likely obstruct the Biden-Harris administration’s policy agenda. Restoring important guidance documents that were rescinded will be time- and resource-intensive. What’s more, the administration will be denied the invaluable assistance that new guidance could provide in getting its agenda off the ground. Rescinding these pernicious orders should be a top priority.


4. Trump attacks the professional civil service. One of Trump administration’s most extreme and dangerous actions came this fall in the form of Executive Order 13957, which created a new exception to federal civil service protections called Schedule F. The order aims to remove protections for federal employees who work in “positions of a confidential, policy-determining, policy-making, or policy-advocating character.”
   
   This broad and nebulous category could apply to career attorneys, scientists, and other technical experts who contribute to the development and enforcement of federal regulations. Practically speaking, it means that Trump and agency officials could fire tens of thousands of apolitical professional career staff at will and populate agencies with their own partisan hacks. The gravity of this threat to the integrity and effectiveness of our federal regulatory system is difficult to exaggerate. Hopefully, this threat can be avoided if implementation can be staved off until Inauguration Day.


5. Trump cynically uses the pandemic to double down on his assault on safeguards. To no one’s surprise, Trump used the COVID-19 pandemic as an excuse to continue his assault on public safeguards. In May, he issued Executive Order 13924, which calls on agencies to use emergency authorities to repeal or weaken rules and take various steps aimed at undermining enforcement. These measures were framed as a response not to the public health crisis but to “promote economic recovery.”
   
   In reality, these measures didn’t amount to much, given the limits on agencies’ statutory authorities. Rather, they were intended to create the illusion of an effective response to the pandemic-induced recession. One exception is weakened enforcement policies, which do present a longer-term concern. They appear to be the result of a last year’s OMB Request for Information (RFI) about regulatory enforcement, which we suspect was a veiled attempt to seek industry feedback on how to weaken enforcement across the executive branch. (Read CPR’s comments on the RFI here.) This Trump executive order should be among the first that Biden rescinds.

In my next post, I will finish counting down the five remaining most significant developments affecting regulatory policy and public protections from the past year.