President Donald Trump attempted to make his mark on policy through an aggressive regulatory rollback strategy. But now, at the end of his term, his own legacy is more vulnerable to rollbacks than any recent president.
Trump administration policies can be undone using the same aggressive techniques that the administration itself used. The primary tools that President Trump relied on, such as executive orders and guidance, do not make for permanent or durable U.S. policy. And many Trump-era regulations were poorly executed and supported, making it easier to undo those rules.
This combination of factors means that the Biden administration has a range of options to act quickly, including some actions that can be taken immediately, and others that can be undertaken in the first six months or over the next two years. They also demonstrate just how limited the Trump administration’s policy legacy will likely be as soon as a new era of rollbacks begins.
Perhaps the easiest of Trump’s actions to undo are his many executive orders and proclamations. Because they require no approval from other branches of government and are rarely subject to judicial review, executive orders were a favorite tool of President Trump. For these same reasons, they are remarkably easy to undo. If President Biden so desired, he could issue one executive order reversing many or even all of Trump’s orders.
Right away, the Biden administration can use this option to make a measurable difference in areas of diversity training, immigration, and natural resources. The Biden administration can immediately reverse Executive Order 13950, an order banning workplace diversity training within federal agencies. It can undo the “proclamation” banning travel from several predominantly Muslim countries. And president Biden can undo President Trump’s proclamations reducing the size of Bears Ears and Grand Stair Escalante national monuments. The Department of Interior can also rely on discretion to reinstate a pause on new coal leasing while it conducts a long-delayed programmatic review of both the royalty and environmental impacts of new coal leases. Similarly, guidance documents issued during the Trump administration can be quickly retracted. For example, there are numerous civil-rights guidances rescinded by Secretary of Education Betsy DeVos that could be restored immediately.
Further easing the rollback of Trump administration policies will be the many cases the administration lost in which agency actions were challenged in court. As a result of these losses, there are numerous rules pending at agencies after court defeats—as just a few examples from the environmental and educational fields help illustrate. After several court defeats, EPA is looking again at its cross-state air pollution rules and at its regulation of greenhouse gases from existing power plants. The U.S. Fish and Wildlife Service is considering whether giraffes and pangolins should be protected under the Endangered Species Act. And the Education Department is subject to multiple lawsuits challenging its implementation of a program to help students defrauded by a now-defunct Corinthian school and, after a recent court decision chastising the agency for rejecting claims, it will need to establish a plan for handling the outstanding claims.The Biden administration can give all these pending rulemakings, and many more, a new direction and purpose.
Even some of the court cases that the Trump administration won highlight the options that the Biden administration has. Courts have rejected challenges to some Trump-era rules related to immigration after holding that the decisions were “committed to agency discretion.” The Biden administration can take advantage of this discretion to instruct its agencies to undo those immigration policies, including the Trump administration’s fast-track deportation policy and decision to terminate Temporary Protected Status for individuals from Haiti, Sudan, Nicaragua, and El Salvador.
The president has even more discretion when it comes to foreign policy. While reversing the direction of foreign policy and rebuilding relationships with allies generally takes time, there are several significant actions that president-elect Biden has already announced he will take immediately upon taking office. He has said he will rejoin the Paris Climate Accord from which President Trump withdrew. President Biden will also bring the United States back into the World Health Organization. And President Biden could strike a blow at one of President Trump’s priorities immediately: He could order a stop on all work building “the wall” at the southern border and raise the caps on the number of refugees that the United States will accept annually from the historically low 15,000 to 125,000 as promised.
In addition to these moves, as soon as Biden is inaugurated, everything that the Trump administration left unfinished will be frozen through a memo to agencies (such as this one issued by the Obama administration). With only one term in office to finish major policies, this hard stop necessarily limits the Trump administration’s ability to make its policies durable.
The First Six Months
The Biden administration can also make significant moves in the first six months of the administration, both through regulations and in court. These actions are more complex and require more care to ensure their longevity than the actions described above. But changes in the areas of health care, immigration, and environmental protections again are all achievable in a relatively short time frame thanks to the Trump administration’s shoddy work.
There are several Trump-era regulations that have already been either enjoined or vacated, and there is no requirementthat an agency file an appeal. Thus, the new administration now will have the option of either dropping any pending appeals or forgoing an appeal—leaving the rule undone. This strategy will likely be useful in several healthcare and immigration cases. For example, a court vacated a rule by the Department of Health and Human Services requiring health-insurers to collect separate payments from policy holders for abortion and non-abortion services. Though an appeal has been filed, no briefs have been filed in the case and the agency could drop the appeal. The same strategy could be used in immigration cases as well, including in the Supreme Court, which is set to hear several pending appeals on Trump-era immigration policies.
The poor analysis underlying Trump-era rules will also make them easier to roll back even if a court has not fully vacated or enjoined the rule yet. In those cases, agencies will be required to go through a notice-and-comment process to change the rule, in which they publish a proposal, await comment, and then publish a final rule that responds to those comments. While that process can be taxing, when it comes to reversing Trump-era rules, it need not be that difficult. For example, with the “Public Charge” regulation, courts have vacated or enjoined the rule in some parts of the country already and each time have highlighted the administration’s failure to address the rule’s financial and health impacts, along with other problems. Citing all of those harms to justify a reversal should be possible in short order—even through the notice and comment rulemaking process.
A Biden administration could also take actions on matters where litigation is still pending. Due to rulemaking delays, most of the Trump administration’s signature environmental rollbacks were only finalized this year, and as a result, challenges to those rules are still pending in multiple courts. The Biden administration thus has the option of asking the court to pause the litigation while it reconsiders the rules. For example, plaintiffs filed challenges to EPA’s rollback of the Chemical Disaster Rule, and that case is pending. If the new administration agrees to re-think that rollback, a Biden-led Department of Justice could ask the court to put the challenge into abeyance until the agency can finalize the re-write. The same possibility exists for litigation over the rollbacks of vehicle emissions standards, the EPA’s methane emissions rule, and Clean Water Act protections under the “Navigable Waters Protection Rule.”
There is also the possibility of allowing existing litigation to play out, as President Trump’s Department of Labor did with the challenge to the Obama-era Fiduciary Rule in the Fifth Circuit. That rule was meant to protect retirement investors from self-interested advisors and save investors billions of dollars. In 2017, the Trump-era agency issued two suspensions of the rule while re-writing it. At the same time, it allowed the litigation over the rule to proceed in the Fifth Circuit, where the court ultimately vacated the rule, leaving nothing left for the agency to re-write. Either way, the fact that the Trump administration was unable to remain in power long enough to ensure that it controls the defense of its rules is likely to ease the new rollbacks.
The First Two Years
Over the next two years, agencies will be able to consider whether and how to re-write Trump-era regulations that have already gone into effect. To reverse course, agencies need only provide a good reason for the new direction, including an explanation about how the new policy is statutorily authorized, and go through a notice and comment period and any required analyses. For example, the Trump administration allowed more employers to claim exemptions from the requirement that their health plans cover contraceptive services at no cost under the Affordable Care Act. Earlier this year, the Supreme Court rejected a challenge to this policy, holding that the agency had broad discretion over how to write the exemptions. But the new administration would be able to rewrite that rule, relying on the same discretion. The same goes for the Federal Communications Commission’s new policy loosening regulation on internet service providers, and many other policies.
In several cases, weak justifications provided by Trump-era agencies for their rules again will aid the Biden administration. In one illustrative case, when the Trump administration imposed restrictions on healthcare providers receiving grants for family-planning services under Title X of the Public Health Service Act, the agency failed to adequately address the costs of the rule, as one court has already held. The Biden-era agency can cite those costs and rely on the record justifying the prior policy to help support a rollback.
In all cases, the new Biden administration will want to work expeditiously to ensure that the new rules can be implemented and go through judicial review before the end of Biden’s first term. Because judicial review can take more than a year and rules can take a long time to write, that means that the clock begins ticking immediately on the any revisions to these rules.
In writing new rules, the Biden administration will also need to consider the risks that litigation poses. The Clean Power Plan, for example, was the Obama EPA’s signature effort on climate change, but it faced a likely battle in the Supreme Court after the justices granted a stay of the rule. While the Trump replacement, the Affordable Clean Energy rule, was vacated today, a new regulation of the greenhouse gas emissions of existing power plants, which would replace the Clean Power Plan, will likely also face a court challenge. The Waters of the United States regulation, which redefined navigable waterways for the purposes of the Clean Water Act, also met a challenge and was stayed in the Sixth Circuit for two years. In re-writing these rules, the administration will have to consider the risks that the rules could end up in a Supreme Court in which Justice Bret Kavanaugh is now the likely swing vote.
Of course there are some policies that will be harder to reverse quickly. While Congress passed few significant bills during Trump’s term, those bills that were passed would require action by Congress to reverse. This includes the tax cut legislation passed in 2017 and the repeal of the tax penalty associated with the individual mandate in the Affordable Care Act. Congress also repealed 14 regulations issued late in the Obama administration using the Congressional Review Act. Reinstating those regulations would require legislation, since agencies are prohibited from reissuing them.
There are also less tangible changes wrought by the Trump administration that will be a long-term challenge for the Biden administration to reverse. Many high-level agency officials left the government over the past four years. Some of them were forced out when they angered the president, while others left because of the general frustration of working for a president so deeply hostile to the bureaucracy. It is not as if these individuals can easily be rehired en masse (even if all of them wanted to return). And though the Biden administration can reverse course on Executive Order 13857, an order which created a new category of federal employees (“Schedule F” employees) with the purpose of empowering the administration to hire and fire career civil servants more easily, that will not be enough to reverse the damage that has already been done. The loss of significant talent among career staff diminishes the capacity of agencies to put in place new policy changes.
Rolling back the Trump administration’s policies will require a great deal of effort. And doing so will take up time and energy that then will be unavailable for work on implementing new policies. But, thanks to Trump-era missteps, the new administration has many tools at its disposal. By taking care to act within the law and follow procedural requirements, and balancing the need to take actions quickly and do so in a manner that will withstand judicial review, rolling back the rollbacks can endure in a way that Trump-era rules themselves will not.