‘Executive orders will drive the overarching regulatory policy goals of the next administration,’ says Dan Goldbeck, director at the American Action Forum.
President-elect Donald Trump won the election on, among other things, pledges to roll back the regulations that were put in place under the Biden administration, particularly those intended to meet net-zero emissions goals in America’s energy industry.
In many cases, however, that will be easier said than done, and may not be something Trump can achieve on day one, according to analysts.
According to the American Action Forum, the Biden administration has finalized 1,114 new regulations to date, adding $1.8 trillion in costs to American businesses and consumers and an estimated 346 million hours of paperwork. And depending on how the regulations were put in place, the incoming Trump administration will likely face challenges in unwinding them.
“It will be on a regulation-by-regulation basis,” Dan Kish, senior vice president of policy at the American Energy Alliance, told The Epoch Times. “There’s actually three categories: executive orders, action from Congress, and those things that have to be done through regulation.
“In other words, there’s a process that’s been set up for changing regulations,” he said. “But all of those things are available to [Trump] depending on what happens with the final Congressional outcome.”
For regulatory mandates that have gone through the formal process of being enacted as “final rules” by agencies, the Administrative Procedures Act (APA) stipulates that cancellation of those rules must go through the same process. This includes a notice and public comment period, as well as a 30-day delayed effective date and a process for judicial review if people can claim they would be adversely affected.
“You do need to undergo rule-making to change rule-making, but a lot of the Biden administration mandates weren’t issued through rule-making,” Matt Bowman, senior counsel and director of regulatory practice for Alliance Defending Freedom, which has litigated against Biden administration mandates, told The Epoch Times.
“We’ve won several cases against mandates that they didn’t bother to put through the rule-making process,” Bowman said. “Those can be taken down pretty quickly.”
Many of the regulations that were issued by direct orders from President Joe Biden will likely be rescinded in the same way.
“Executive orders will drive the overarching regulatory policy goals of the next administration,” Dan Goldbeck, director of regulatory policy at the center-right American Action Forum, told The Epoch Times. “But they will have limited direct impact on rules already on the books.”
The Role of Congress and the Courts
However, even for regulations that have gone through the rule-making process, there are several options available to the Trump administration to have them rescinded in short order. The first is have Congress overturn them using the Congressional Review Act (CRA) if Republicans are able to gain a workable majority in the House.
According to the CRA, agencies must submit final rules to Congress before they can take effect. If both houses of Congress disapprove of the rule, and the President concurs or Congress overrides a presidential veto, the rule cannot go into effect. There is, however, a time limit, effectively about 6 months, for Congress to take action.
Since its passage, the CRA has been used to overturn a total of 20 federal rules, 16 of which were Obama administration mandates overturned by a GOP-led Congress in 2017.
“It’s tough to say what the exact number will be this time around, but I expect Congressional Republicans to be quite active on this front,” Goldbeck said.
In order to avoid the fate of many Obama-era regulations that were blocked by Congress, the Biden administration rushed to finalize a number of rules well before the date when a new administration could take office.
“There’s plenty to suggest that the Biden administration made a point of finalizing some of its highest priority rules earlier this year to avoid potential scrutiny under the CRA,” Goldbeck said. “Nevertheless, the general expectation is that any rule finalized from the start of this past August onward will be vulnerable to repeal under the CRA.”
Even for regulations that are no longer subject to Congressional review, there are options to remove them fairly quickly, particularly those that have been challenged in court.
“Many of the rules, the most egregious rules the Biden administration imposed, are in court, and courts don’t need to wait for a rule-making process to strike down an illegal rule,” Bowman said. “Courts have already in some cases issued at least preliminary injunctions against those rules so that the Trump Department of Justice, if it prioritizes the President’s agenda, can acknowledge the illegality of some of these rules.”
Where lower courts have ruled in favor of the Biden administration, the DOJ can appeal those cases to the Supreme Court in hopes of getting a different verdict. And for cases that are awaiting decisions, federal agencies can delay enforcement of the rules until a verdict is reached.
‘Personnel Is Policy’
In Washington, it is often said that “personnel is policy.” Accordingly, the people that Trump puts in place within the agencies will also go a long way in determining how regulations are implemented, if at all.
“What he can do through executive orders is give instructions to the federal agencies to stand up or stand down on any number of initiatives,” Jonathan Berry, managing partner at Boyden Gray and former chief counsel to President-elect Trump’s first-term transition team, told The Epoch Times.
In addition, outside of existing agencies, Trump announced on Tuesday that Elon Musk and Vivek Ramaswamy will run a new department intended to oversee the reduction of regulations throughout the federal government and improve government efficiency.
How well Trump’s agencies coordinate among each another, including cooperation between regulators and the DOJ, will be a critical factor in determining whether or not Trump’s deregulatory agenda succeeds, according to Bowman.
“I think the President can achieve his goals if all of his appointees are on the same page,” Bowman said.