President Donald Trump’s first executive orders have aggressively targeted the federal bureaucracy, but fully undoing the Biden administration’s “whole-of-government” approach to enforcing its agenda on everything from the climate to racial equity will be a time consuming battle.
Biden administration regulations will need to be unwound in the coming months through a combination of congressional action, legal challenges and rewriting or revoking rules through the slow-moving standard process.
“Final agency rules cannot simply be undone by the president (by Executive Order, for example), but they often indicate that a change-of-rule is coming,” Sarah Parshall Perry, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the Daily Caller News Foundation. “Trump’s EO on gender identity, for example, has directed all the agency heads to revisit (and if necessary rewrite) their proposals, memoranda, or rules that conflict with the understanding of ‘sex’ in federal law, as male and female. That process is underway.”
Such finalized Biden administration rules likely to be targeted include the Department of Health and Human Services (HHS) foster care rule, which requires children to be placed in homes that affirm their beliefs about gender, and the redefinition of “sex” in Section 1557 of the Affordable Care Act to include “gender identity.”
The administration also issued rules that would effectively require automakers to increase electric vehicle production and forcing corporations to disclose climate change risks.
Congress can reverse certain regulations issued during the final days of the Biden administration using the Congressional Review Act (CRA). Republican Senate Majority Leader John Thune told Axios Jan. 15 that Republicans may attempt to undo a “fairly lengthy list” of regulations using the CRA, which gives Congress 60 days to overturn rules after they are finalized by an agency.
Texas Sen. Ted Cruz led 13 other Republicans on Monday to introduce one such CRA that would reverse a Federal Communications Commission order that subsidizes off-campus Wi-Fi hotspots for schoolchildren.
Older rules could also be blocked if they face challenges in court or are rewritten through the same notice-and-comment rulemaking procedures used for new regulations.
‘Restore Order’
Other steps can be taken while the process of rescinding regulations plays out.
Trump directed all agencies to freeze rulemaking until proposals can be approved by a Trump appointee and to postpone published rules from taking effect for an additional 60 days to review the questions of “fact, law, and policy” that they raise.
Trump established the Department of Government Efficiency on his first day. He froze federal grant spending on Tuesday, ordering a review of spending that may be impacted by executive orders relating to ” financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal,” according to a memo written by Office of Management and Budget Acting Director Matthew Vaeth.
“The use of Federal resources to advance Marxist equity, transgenderism, and green new deal social engineering policies is a waste of taxpayer dollars that does not improve the day-to-day lives of those we serve,” the memo says.
In his executive order on gender ideology, Trump explicitly directed specific guidance documents to be rescinded, including the EEOC’s Harassment Guidance issued under the Biden administration. The guidance states that sex-based discrimination includes gender identity, meaning declining to use preferred pronouns or failing to offer men access to women bathrooms could constitute harassment.
“Any guidance (regulatory dark matter) can be overturned by Trump, so the Biden EEOC guidance can be eliminated,” Clyde Wayne Crews, Fred L. Smith Fellow in Regulatory Studies at the Competitive Enterprise Institute, told the DCNF. “Despite Trump’s flurry of orders, we still await Trump reissuing his requirement for guidance document portals and public protections, as well as, for that matter, his one-in, ten-out promise. But those are highly anticipated.”
Seeing an uphill battle, the Biden administration withdrew several unpopular proposed rules towards the end of his term, including a rule that would have rescinded free speech protections for religious student groups on college campuses and a Department of Labor rule that would have promoted DEI in its apprenticeship program.
It also withdrew its Title IX athletics rule, which establishes criteria to allow participation based on gender identity, citing “pending court cases.” A federal judge blocked on Jan. 9 implementation of the administration’s rewrite of Title IX to include gender identity.
To truly address the problem, Congress needs to stop handing over legislative authority to federal agencies, Crews argues.
“While Trump’s first term saw the lowest annual rule totals ever recorded, Biden leaves behind the largest Federal Register in history,” Crews wrote. “To restore order, meaningfully reduce government scope, and eliminate what Trump called ‘harmful executive orders and actions,’ the 119th Congress and the president must confront not solely Biden’s regulatory legacy, but also Congress’s spending-fueled complicity in overreach.”
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