In a July 2020 memo for a post-Trump administration, Public Citizen discusses two important aspects of unwinding the deregulatory state and restoring the role of the federal government in protecting public health, safety, financial security, and the environment. First, we suggest executive actions to reverse anti-regulatory measures by the Trump Administration and to address structural barriers to rulemaking, expediting the restoration of both public protections and the integrity of the regulatory process. Second, we address the legal framework established by the Administrative Procedure Act, particularly as it relates to rulemaking issues that arise at the start of a new administration.
As to the first, presidents have used executive orders and other tools to create additional rulemaking requirements and procedures. Most notably, the Office of Management and Budget, through its Office of Information and Regulatory Affairs (OIRA), reviews nearly all agency rules, primarily focusing on cost-benefit analysis. OIRA has been notoriously called “where good regulations go to die.” To effectively restore the myriad public protections destroyed in recent years, a new administration must think about reforming OIRA’s role creatively and with fresh eyes.
Second, in its hurry to revoke a wide swath of regulations crafted to protect the public—rules addressing fair wages, clean air and clean water, fair housing, immigration, and health care—the Trump Administration took a variety of shortcuts. By doing so, it gave people who care about human health, safety, and fairness an avenue to slow, even stop, the deregulation: by challenging in court the Administration’s myriad violations of the Administrative Procedure Act. Now, as we start to think about how a new administration can begin the crucial task of restoring and bolstering regulations to promote the democratic and humanitarian values that have long defined our nation, it is important not to repeat those procedural mistakes. By regulating in accordance with the rules of the Act, the Biden Administration can ensure the success of its efforts.