Some see federal regulatory intervention as unaccountable and unrestrained. That was and remains a key focus of the Donald Trump reform agenda.
Executive orders addressing regulatory relief and transparency have enjoyed some staying power even as presidential administrations have changed. Principles like cost-benefit analysis have stuck around, in theory at least.
Absolutely set to be chopped in a Biden Administration would be Donald Trump’s infamous executive order directing agencies to eliminate two rules for every one added while freezing regulatory costs (E.O. 13,771, Reducing Regulation and Controlling Regulatory Costs). No way that one would stick around. Neither the far-progressive wing, nor even Biden’s purportedly more moderate agenda would ever permit that.
The mechanics of the offsets the Trump administration used to claim success in one-in, two-out came under the inevitable criticism, but the essence of the campaign is primarily a cost freeze if one goes back and reads the order; and well—Democrats don’t want anything to do with freezing regulation.
One-in, two-out was losing steam as the low fruit was picked administratively and newer big changes required lengthy rulemaking and often faced instantaneous lawsuit proceedings. But the cost caps and reduction in regulatory flow were important. Soon we should get a new 2020 update on the program.
Going much further than Trump did would require Congress to get up on its hind legs and actually act to reduce regulation; some members tried mightily, but it didn’t happen under Trump and almost certainly will not happen under Biden.
Bottom line, as under Obama, Biden will deploy a lot more unilateral “pen and phone” executive action to grow the regulatory state but not shrink any of it.
So that’s where things stand. But is a little transparency too much to ask if Biden assumes the White House? Transparency and sunshine are bipartisan virtues, voiced ones at least.
We can count up federal agency rules each year, but can also do far better in terms of disclosure and framing of their type, costs and effects in what one might call a regulatory report card.
But alongside rules, agencies also issue what are referred to as guidance documents. There are many variants this off-the-books, sub-regulatory activity. They can be so hard or impossible to find that we took to calling them regulatory dark matter.
Guidance is not supposed to be legally binding on the regulated or affected public. But as the Administrative Conference of the United States pointed out, some (like those needing permission or a permit from a government agency) might be reluctant or fearful to ignore them.
In response to this concern, President Trump issued Executive Order 13,891 in October 2019 (“Promoting the Rule of Law through Improved Agency Guidance Documents”) to direct agencies to perform a survey and purge. Agencies were also instructed to create “portals” for retained and future documents on their websites so that people can locate them easily.
Trump should improve upon his order right away. If he does not in the next two months and also leaves office, Biden should both retain and build upon it despite the pressure he will get to torpedo it. (Presidents have always been free to expunge prior officeholders’ orders, but by some recent court reasoning, perhaps presidents cannot simply eliminate their predecessors’ directives that have come to be relied upon. But that upending of constitutional order is a larger problem for another day).
In the spirit of transparency and that of Biden’s own “unity” appeal to be a president for all (including the regulated and their right to know), he should not only retain Trump’s E.O. 13,891 but improve upon it to amplify oversight of agencies, their transparency, and their responsiveness to the affected public.
The Trump order also institutes public notice and comment procedures for certain kinds of significant guidance. A Biden administration would likely yank this particular element on day one, but is urged to resist the impulse.
Guidance should also be liberally deemed “significant” such that formal Office of Management and Budget review, a bipartisan tradition when it comes to significant rules and regulations, is escalated. The OMB guidance review contained in Trump’s order should be expanded to incorporate the independent agencies that are now exempt. (Some independent agencies, commendably, do participate voluntarily in the portal project).
There are a number of additional features that oversight of guidance documents and interpretative rules should include. Trump’s order reaffirmed prior not-fully-enforced procedures dating back to the George W. Bush and Obama administrations for guidance document oversight. Now is a good time to embrace the tradition by making agencies that remain non-compliant with guidance disclosure toe the line, and by minimizing the inappropriate use of guidance.
While E.O. 17,891 represents a profound improvement in disclosure by presenting guidance documents and summaries at a centralized location on each compliant agency’s website, there needs to be one single federal portal containing them all. (This unofficial one-stop portal needs to be made official.) The public deserves a comprehensive compendium of all validly issued guidance that mirrors the Code of Federal Regulations. As under the Trump order, anything not in the compendium is invalid. (Of course, safe harbors can prevail during a transition period for guidance the public has come to rely on to protect itself).
Guidance (and rules in the Federal Register, for that matter) should also be designated as “Regulatory” or “Deregulatory” in the way that some rules in the Unified Agenda are now. This binary designation is new for the Agenda under Trump and it should be expanded; a Biden administration should at the very least retain it.
The Congressional Review Act gives Congress an opportunity to issue a resolution of disapproval on new agency rules, and this procedure includes guidance. The reporting template that agencies use now, called “Submission of Federal Rules Under the Congressional Review Act,” does not clearly designate guidance and needs to be changed to do so. This will greatly improve clarity with respect to agencies’ submissions of guidance to the Government Accountability Office and to both Houses of Congress per the CRA.
The aim here isn’t to say that guidance is A-OK as long as it follows procedure. Quite the contrary; there needs to be a ban on initiation of certain federal agency guidance, especially in frontier technology sectors where Congress has not legislated. One fears the opposite in what will be a pen-and-phone-happy Biden administration.
The extent to which guidance documents set the terms in so many walks of life was already a concern to resolve before the election, and the stakes are rising. At the very least we can keep the portals and disclosure intact no matter what else January 2021 brings.