Agencies Work to Roll Back Trump Directive Targeting ‘Unaccountable Bureaucrats’
The executive order sought to stop furtive rulemaking through guidance documents.
Agencies are making progress on undoing an executive order from President Trump that sought to prevent “unelected, unaccountable bureaucrats” from creating “backdoor regulations.”
In October 2019, Trump issued an executive order that required most agencies to publish guidance documents online and established a process for public comment and interagency review of those documents, except in certain circumstances. Independent agencies were exempt from the order. The law firm Pillsbury Winthrop Shaw Pittman LLC noted at the time that for years courts have been concerned with agencies’ use of guidance documents to justify their enforcement proceedings. However, the Trump administration took a uniquely hostile approach to the civil service.
On January 20, Biden signed an executive order to rescind “harmful policies and directives that threaten to frustrate the federal government's ability” to tackle the coronavirus pandemic, economic recession, racial inequality and climate change, including the October 2019 order.
So far, the Social Security Administration; Council on Environmental Quality; U.S. Agency for International Development; Pension Benefit Guaranty Corporation; and Energy, Interior, Labor and Transportation departments have taken steps to repeal their rules, in keeping with Biden’s executive order, according to Matt Kent, regulatory policy associate at the nonprofit Public Citizen, who has been tracking progress.
“I think the current progress, all things considered, is a good start, but a lot of work remains to get agencies back to a place where they can more easily issue guidance documents necessary to keep the public and regulated industry informed of the latest regulatory interpretations and enforcement decisions,” Kent told Government Executive. “Trump’s politicals used EO 13891 to lay a varied series of procedural traps, bottlenecks and outright barriers to new agency guidance and, in some cases, rulemaking. It’s naturally going to take some time for Biden’s agency teams to get to each rulemaking.”
Each agency has to work to rescind the executive order according to the way in which the Trump-era rules were finalized.
“For example, [the Energy Department] is doing a 30 day comment period to match the same when the rule first went through,” Kent said. “In a lot of cases, though, agencies can just do what [the Labor Department] did and repeal the original rule without notice and comment because it’s an internal agency rule of procedure.” He also noted that, “most agencies already post guidance docs that aren’t published in the Federal Register.”
Stuart Shapiro, associate dean of faculty at the Bloustein School of Planning and Public Policy at Rutgers University told Government Executive that “some independent agencies issued such regulations as well even though they were not required to” and “the revocation of these regulations is now a discretionary matter” for them.
“An independent agency might weigh its options and make a decision about whether to go along with President Biden's direction or whether to lean into its independence,” said Bridget Dooling, research professor at The George Washington University's Regulatory Studies Center and a former Office of Information and Regulatory Affairs analyst. “It will be interesting to see which independent agencies make which choice.”
James Goodwin, senior policy analyst for the Center for Progressive Reform, said that the order only mandating changes for executive branch agencies “is consistent with historical practice amid prevailing legal uncertainty about whether and to what [extent] presidents can direct the activities of independent agencies through executive orders.” He added that many executive orders “explicitly exclude independent agencies. Occasionally, you’ll see executive orders that merely ‘encourage’ independent agencies to do something, but stop short of requiring specified actions.”
The Competitive Enterprise Institute, a libertarian think tank focused on economic policy and regulatory issues, was supportive of Trump’s order. In a post on February 24, the institute’s vice president for policy and senior fellow Clyde Wayne Crews and research associate Mariam Inam chided Biden for unraveling “one of the more significant advances in administrative disclosure yet seen,” making him “the Edward Scissorhands of government transparency.”
Additionally, during a confirmation hearing on February 9 for then-Office of Management and Budget Director nominee Neera Tanden, Sen. James Lankford, R-Okla., said he was “quite shocked” Biden revoked the order. “It didn’t seem to be partisan. It seemed to be a pretty good idea to say ‘don’t hide your guidance, put it all in one spot, so a small business owner doesn't have to search for it they can actually find it.” (Tanden responded, saying if confirmed, she would look into the rationale behind repealing the order, but she withdrew her nomination on March 2).
Lankford was one of 21 Republican senators to criticize Biden for revoking the order in a letter sent on February 8. They noted the order “was modeled on bipartisan legislation, the Guidance Out Of Darkness Act, or the GOOD Act,” which “was approved by voice vote by the Senate Committee on Homeland Security and Governmental Affairs each of the last two Congresses.”
Upon signing the executive order in October 2019, Trump signed a second, complementary one, that required agencies to tell individuals about any regulatory cases against them, acknowledge responses from them and inform businesses about new regulatory impacts.
Then-OMB Director Russ Vought wrote an opinion article for Fox News arguing the action “protects Americans against secret or unlawful bureaucratic interpretations of rules and guards against unfair or unexpected penalties for non-compliance.” Biden also revoked that order in January.
The Trump administration’s regulatory agenda was primarily focused on rolling back regulations to achieve cost savings and streamline government, and preventing alleged undue influence from career executive branch officials. Undoing these executive orders is one of the many actions the new administration is taking to reverse course.