Regulatory Policy

Out of the Gate, Biden Ditches Bipartisanship

Vice President Kamala Harris watches as President Joe Biden signs executive orders on his racial equity agenda at the White House, January 26, 2021. (Kevin Lamarque/Reuters)
For those who hoped Biden would lead from the center, his early actions are a worrying sign about things to come.

There were many who hoped that after the partisan divisions of the Trump years, President Biden would try to bring the country together by governing from the center. Given a recent spate of executive actions, however, Biden seems more focused on undoing Trump’s policies, including some that were sensible and bipartisan. Biden campaigned on bringing a different approach to American politics, but so far he has stuck to a script that owes more to ideology and partisanship than to “unity.”

A case in point comes from Biden’s recent executive order, “Revocation of Certain Executive Orders Concerning Federal Regulation.” Signed on the president’s first day in office, it repealed six of Trump’s executive orders in one fell swoop, such as the famous “2-for-1” requirement that two regulations be eliminated for each new one.

The 2-for-1 order was never likely to survive the arrival of a Democrat in the Oval Office, but several other changes were more surprising, such as the repeal of a 2019 executive order on “Promoting the Rule of Law Through Improved Agency Guidance Documents.” This one included some fairly uncontroversial and bipartisan elements.

Here is some background: Regulators write regulations. That’s what they do. But regulators also issue other kinds of policy statements, which can have the effect of regulations without going through the normal rulemaking channels. For example, an agency might write a document that outlines the steps businesses can take to ensure they are in compliance with an official regulation. Such a document might change business behavior — just like a regulation — but it might also skip normal processes that official rules go through, such as allowing the public to submit comments, preparing an economic analysis, or undergoing third-party review by the Office of Management and Budget (OMB).

These kinds of agency policy statements come in many forms and are collectively referred to as “guidance documents.” Trump’s executive order required agencies to build a searchable website to house these guidance documents. Transparency is something most people can agree on, and the process is mostly finished now. Trump’s order also required the most significant guidance to undergo OMB review, accept comments from the public, and, in some cases, have a cost-benefit analysis prepared.

These may sound like major changes, but in fact, Trump’s order largely formalized what was already taking place informally from actions taken by the George W. Bush and Obama administrations. The order included elements similar to bipartisan legislation introduced in the Senate, known as the “Guidance Out of Darkness Act.” Vice President Kamala Harris even voted for this legislation when she served on the Senate Homeland Security Committee.

The issue of policy-making by guidance document has been especially important during the pandemic, when many of the policies coming out of the Department of Health and Human Services, and especially from the Food and Drug Administration and the Centers for Disease Control and Prevention, have been implemented through guidance documents. While many of these actions are justified by urgency, HHS has also been very liberal about using its emergency authorities to make sweeping policy changes without public input or a proper accounting of economic consequences. The consolidation of lawmaking power by bureaucrats is troubling.

Consider two recent examples from Biden’s CDC. First was a requirement that individuals wear masks on planes, trains, buses, subways, and other transportation systems across the country. The rule will need to be enforced by TSA agents as well as other federal, state, and local officials, thereby imposing significant costs on various levels of government, which should at least be part of the discussion. Second, the CDC extended a Trump-era directive implementing a nationwide moratorium on evictions for certain delinquent renters.

Both actions were deemed “economically significant” by the OMB, a designation that normally entails a public comment period and the production of a cost-benefit analysis (requirements also emphasized in the rescinded Trump executive order). However, in both cases, the agency claimed it didn’t have to follow usual procedures because of the ongoing emergency.

To be fair, the Trump administration also skirted these requirements when taking shelter under HHS’s emergency authorities. But with the pandemic now a year old, one has to wonder at what point HHS’s emergency powers will end and a normal rulemaking process will return.

Even those who support the CDC’s rules might wonder whether the agency should be able to pass these rules simply by posting a PDF on its website. The breadth of the CDC’s powers is stunning. Keep in mind, this is the same agency that couldn’t put together a functioning COVID-19 test in the critical early days of the pandemic.

All told, Biden’s recent regulatory changes are a disappointment. He should be using a scalpel when it comes to reversing the prior administration’s policies. Instead, he is swinging a hatchet, as nearly every Trump policy is viewed as guilty by association. That may make the progressive wing of Biden’s party happy. For those who hoped he would lead from the center, his early actions are a worrying sign about things to come.

James Broughel is a senior research fellow at George Mason University’s Mercatus Center and the coauthor of the new study, “The Impact of Economic Regulation on Growth: Survey and Synthesis.”


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