January 20, 2021
The first 100 days: The Biden administration’s regulatory agenda and what it means for states
After a heated presidential election, the Biden-Harris administration took over the executive branch on January 20, 2021. Based on the Biden campaign’s policy platform and campaign promises, the new administration is rolling out a series of executive orders that will pause and unwind the vast amount of deregulation and reforms promulgated over the last four years.
For years, a powerful network of state think tanks across the country has championed federal policies that empower states to solve problems. Many of these state think tanks work directly with the executive branch—regardless of political party—to advance reforms that give states more control over policy decisions. According to these think tanks, Americans thrive and flourish when decisions are made closer to home, at the state and local level.
Over these last few years, there have been several rules and regulations passed that rein in federal power and let states govern themselves. State think tanks should prepare to make the case for why these policies benefit American families and businesses. They should also be on the lookout and ready to respond to potential new regulations that transfer power from state and local decision makers while increasing the federal government’s power.
In the wake of the Great Depression, President Franklin D. Roosevelt coined the term “first 100 days” by passing a series of major bills that reshaped the country. Since then, all future presidents have been measured by this 100-day standard. This period of time has become a benchmark for a new president to make significant progress in achieving their agenda. Often, the quickest way to advance that agenda is through executive orders. An incoming president can immediately revoke, modify, or supersede executive orders issued by a previous administration.
1. A memorandum. On day one, as is typical for any administration, the Biden administration issued a memorandum ordering federal agencies to: 1) cease sending any proposed or final rule to the Federal Register; 2) withdraw any regulation already sent to the Federal Register; and 3) postpone effective date of any published regulation that has not gone into effect.
2. Congressional Review Act (CRA). The CRA is an oversight tool that gives Congress the ability to use an expedited review process to overturn rules issued by federal agencies. This applies to regulations finalized by executive branch agencies in the previous 60 days. Once the rule is published in the Federal Register, the Senate has 60 days to review and disapprove (i.e., eliminate) the regulation with a simple majority vote. Note that this process uses valuable Senate floor time during the start of a new administration. The new administration has several priorities they need to accomplish right away, such as confirming the new cabinet and working with Congress to pass additional coronavirus relief. Therefore, it’s not clear how often Congress and the new administration will use the CRA.
3. Rulemaking process. Remaining enacted regulations that are not eliminated via CRA would have to go through the time-consuming rulemaking process.
4. Legal Challenges. For regulatory actions currently in litigation, the new Biden administration could rescind a rule based on a lower court decision that invalidated the regulation, or in other cases it could ask the court to put pending litigation on hold while the agency reconsiders the rule.
This Network has worked with presidential administrations to advance policies that put more power back into the hands of states and give families access to a quality education, affordable healthcare, and job opportunities.
That’s why this Network supported a new rule that clarifies whether someone is classified as an employee or an independent contractor under the Fair Labor Standards Act. The rule considers control over one’s work and the ability for profit or loss as the core factors to determine whether someone is working for themselves or is an employee. It’s subject to the CRA due to the applicable 60-day timeframe. State think tanks should prepare to support this rule and reiterate the benefits—both to their member of Congress and audiences within their state.
There are many other rules that could be subject to the CRA, such as a rule that improved the environmental permitting process and a rule that changed vehicle mileage standards. Additionally, a rule that required retirement plan investors to prioritize fiscal returns over social goals and a rule that made reforms to the Endangered Species Act could also be eliminated. Though it only takes a simple majority for Congress to eliminate a rule through the CRA, finding common ground with more moderate democratic Senators will be difficult. Expect Congress to proceed cautiously if they use the CRA process.
Not only do states need to prepare for new regulations that usurp local and state control, they also need to keep a watchful eye on potential state bailouts and strings attached to COVID-19 relief funds and federal grants. Fortunately states can engage in the rulemaking process to ensure that Washington does not overstep its bounds. States can choose to not accept funds with burdensome requirements and they have the ability to push back against federal overreach, especially when a rule violates or oversteps their authority.
State think tanks have the opportunity to educate state leaders about effective strategies to engage and provide feedback on proposed regulations from the Biden administration.
For instance, states can use litigation. If a federal rule violates states’ rights, then leaders can challenge that rule in the courts, which can delay implementation of the rule and lead to better rulemaking.
Second, state think tanks can participate in the rulemaking process by issuing public comments on proposed rules. Through the comment process, state think tanks can weigh in on the effects of certain regulations and highlight how they will help or hinder people, businesses, or their state. State think tanks can play a key role in providing an alternative voice to the interest groups that typically weigh in on proposed rules. Agencies often make changes to the proposed rule based on the feedback they receive in the comments. Even if state think tanks don’t succeed in halting a misguided regulation, they have the chance to improve it.
Finally, since Democrats have a razor thin majority in Congress and currently the filibuster is not in danger, Democrats will have to rely on the budget reconciliation process to accomplish their policy goals. Reconciliation is a process by which Congress implements policies affecting mainly permanent spending and revenue programs. It only requires a simple majority vote, which means it will only take one moderate Senate Democrat to derail efforts. Think tanks can inform their audiences about policies Congress is considering and reach out to their federal lawmakers about the impact additional state bailouts and other proposals would have in their state.
As the Biden administration works to realize their policy agenda and a Democrat Congress seeks to take advantage of their majority, we can expect an expansion of federal government as their remedy to America’s current challenges. Often, these top-down, inflexible solutions from DC don’t serve communities and people as well as solutions that are developed close to home. The best way leaders in DC can facilitate meaningful change is to leave certain rules and regulations up to the states—where they can be tailored to communities’ unique needs and opportunities for growth.
Americans’ support for this approach is only growing as time goes on. According to the Pew Research Center, the majority of Americans believe the prescription to our country’s problems begins with neighborliness. It’s in our schools, churches, and civic organizations where people can come together to find common ground.
As champions of state and local solutions, the next 100 days and beyond are an extraordinary opportunity for state think tanks to lead the way.
