Five Ways the Biden Administration Could Rescind or Reverse the Trump Administration’s Regulatory Actions

Five Ways the Biden Administration Could Rescind or Reverse the Trump Administration’s Regulatory ActionsFOLEYHOAG.COMNOVEMBER 13, 2020Tad Heuer Kelly CaiazzoAaron LangFive Ways the Biden Administration Could Rescind or Reverse the Trump Administration’s Regulatory ActionsNOVEMBER 13, 2020 Tad Heuer Kelly Caiazzo Aaron Lang FOLEY HOAG LLP 1 FOLEYHOAG.COMFive Ways the Biden Administration Could Rescind or Reverse the Trump Administration’s Regulatory ActionsVarious media outlets are reporting that President-elect Joe Biden already has plans to sign a series of executive orders shortly after being sworn into office in January.1 Some of these planned executive orders—such as one to reinstate the Deferred Action for Childhood Arrivals (DACA) program—will immediately reverse agency action taken by the Trump administration over the past four years. While the Biden administration will likely seek to rescind or amend other Trump administration rules and policies, some actions will require additional procedures—and more time—to implement. We explore five ways in which the incoming Biden administration could reverse the Trump administration’s regulatory actions. I. EXECUTIVE ACTION How quickly can the Biden administration act to reverse President Trump’s executive orders? President Biden can issue executive orders repealing President Trump’s executive orders immediately after assuming office on January 20, 2021. Historically, incoming administrations have repealed a small number of executive orders in their initial days, with additional reversals occurring within the first several months. That is likely because executive orders, including orders repealing a previous administration’s executive orders, are typically subject to inter-agency and legal review, which can take time. However, the media is reporting that the Biden administration’s transition team is preparing for several repeals on his first day as President, so it is possible that President Biden will move more quickly. One widely reported executive action President Biden plans to take on day one is to rejoin the Paris Climate Agreement, which would not require congressional approval, as the Agreement is treated as an “executive agreement” under U.S. law, rather than a treaty. Could the Biden administration freeze existing rules or regulations? For rules that are proposed but not yet published as final in the Federal Register, the Biden administration could halt those rules and impose a moratorium on rulemaking across federal agencies. For rules that have been published as final in the Federal Register but have not yet taken effect, the Administrative Procedure Act’s (APA) mandatory 30-day waiting period means that the Biden administration could postpone the effective dates of those rules, likely by up to 60 days (given the practices of previous presidents). 1See Matt Viser, Seung Min Kim, and Annie Linskey, Biden Plans Immediate Flurry of Executive Orders to Reverse Trump Policies, WASH.POST, Nov. 7, 2020, available athttps://www.washingtonpost.com/politics/biden-first-executive-orders-measures/2020/11/07/9fb9c1d0-210b-11eb-b532-05c751cd5dc2_story.html; Michael D. Shear and Lisa Friedman, Biden Could Roll Back Trump Agenda With Blitz of Executive Actions,N.Y.TIMES, Nov. 8, 2020, available at, https://www.nytimes.com/2020/11/08/us/politics/biden-trump-executive-action.html2 FOLEYHOAG.COMFive Ways the Biden Administration Could Rescind or Reverse the Trump Administration’s Regulatory ActionsIf the rules are published and have taken effect, the Biden administration could not freeze, withdraw, or postpone those rules. Repealing them would in most cases require notice and comment, which is described below. What can the Biden administration do to change a postponed rule? The Biden administration could not alter a published rule that has been postponed. Rules are final upon publication in the Federal Register, even if they have not yet taken effect. The Biden administration could use the time during postponement to propose a new rule or a rule repeal, which in most cases would require notice and comment. However, there is a “good cause” exception to the notice and comment process if an agency determines that notice and comment would be “impracticable, unnecessary, or contrary to the public interest.” See 5 U.S.C. § 553(b)(3)(B). oThis exception is used to justify Interim Final Rules, which are published and take effect...