Thanks to the recent presidential election results, I’m able to do something I haven’t done in a long time: look at a new year with something resembling hope and optimism. As noted in my December 21posts, the Trump administration wreaked havoc on our system of regulatory safeguards in 2020, as it did in previous years. The incoming Biden-Harris administration brings a strong mandate to undo the damage — and to go further by building a more just and people-centered government that can meet the pressing challenges America faces.
Will we seize the moment? Here are the first five of 10 storylines I’ll be following this year. Each could significantly influence efforts to build a regulatory system that can deliver safeguards that the American public expect and deserve.
Will the U.S. Senate runoffs in Georgia put the Congressional Review Act (CRA) in play? Winning these elections would give Democrats full control of the White House and both chambers of Congress – and the opportunity to use the CRA’s fast-track procedures to repeal the Trump administration’s most recent regulatory actions. But just because Democrats can use the CRA doesn’t mean they should. Aggressive use of the law would normalize the Trump administration’s abuse of it. Because CRA is asymmetrically biased against progressives’ policy priorities, Democrats may not want to go down that road.
Who will President-elect Biden pick as his OIRA administrator? Biden has assembled a climate-focused team with his nominations for the U.S. Environmental Protection Agency (EPA), the Departments of Energy and the Interior, and the White House Council of Environmental Quality. But those picks won’t mean much if he chooses a centrist who is hostile to or skeptical of regulations to run the White House Office of Information and Regulatory Affairs (OIRA). Progressives are watching this pick closely, as it will provide the clearest signal yet as to how seriously Biden plans to pursue his agenda. CPR and our allies are urging Biden to select someone who is committed to using regulations to advance the common good and is appropriately skeptical of cost-benefit analysis – a practice that forces regulators to convert efforts to protect people and the planet into dollars and cents. Decades of experience have shown that cost-benefit analysis is flawed in practice and intrinsically biased against effective safeguards.
What, if anything, will Biden do with Executive Order 12866? This order, which establishes the current framework for OIRA’s regulatory review process, including the use of cost-benefit analysis, poses a huge obstacle to the Biden-Harris administration’s ability to carry out its policy agenda. Biden could retain Executive Order 12866 and supplement it with a new one, as President Obama did with Executive Order 13563. But it’s not clear what a supplemental order could say that would be new or useful. For example, the Obama order never lived up to its promise of making cost-benefit analyses less rigid and more attentive to issues of fairness and social justice. Or, Biden could scrap the order altogether and replace it with a progressive alternative, as CPR urges in its Beyond 12866 initiative. Or, he could proceed with business as usual, which would mean OIRA’s stifling review process and cost-benefit analysis would continue to weaken and delay essential safeguards.
Will Biden rescind all of Trump’s dangerous executive orders on regulations? Over the last four years, Trump issued several executive orders that sought to tie the regulatory system in knots and prioritize corporate profits over public protections. These included his infamous “two-out, one-in” regulatory budget order, which requires agencies to revoke two regulations for every new one issued. Trump’s orders also undermine agency use of guidance documents, attack the civil service, weaken regulatory enforcement, and give fossil fuel polluterscarte blanche to destroy the environment. Biden can and should demonstrate his commitment to rebuilding the regulatory system by rescinding all of these orders early on, if not on Day One.
Will the ‘Trump’ Supreme Court weaken the regulatory system? The addition of Amy Coney Barrett to the Supreme Court all but ensures a majority of justices will be willing to undo key legal doctrines that undergird the modern regulatory system. Barrett could help revive the non-delegation doctrine, which would effectively end Congress’s ability to rely on laws such as the Clean Air Act to address far-reaching and complex social problems. Or she could join the Court’s other conservatives in striking downChevron deference, a principle that gives agencies the first chance to resolve ambiguities in federal laws that direct agencies to protect people and the environment, ensuring their effective implementation. Conservative legal organizations are no doubt working to bring cases that test these and other regulatory policy doctrines before the Court as soon as possible.
In my next post, I'll wrap up my top 10 list of regulatory stories to look out for this year.
