Overlooked Biden order will unleash ‘the regulatory state with a ferocity never before seen’


One of President Joe Biden’s first executive actions that so far has not received a lot of attention, could actually be one of his most consequential in terms of re-empowering a federal, bureaucracy that lost much of its rule-making clout under former President Donald Trump.

The order, “Modernizing Regulatory Review,” isn’t really about “modernizing” the review of regulations but rather more “about unleashing the regulatory state with a ferocity never before seen in this country,” says an editorial from Issues & Insights posted online Friday.

The outlet’s editorial board noted further that the order’s objective seems to be the elimination of “the cost-benefit analysis that for many decades has served as at least a modest brake on the ambitions of regulators.”

In past administrations, a regulation whose compliance costs far outweighed its benefits usually could be blocked by the White House Office of Information and Regulatory Affairs.

However, Biden’s order alters the review process, making it “a tool to affirmatively promote regulations” and “to ensure swift and effective federal action” on just about everything — from the economy, the COVID-19 pandemic, racial inequality, to the “undeniable reality and accelerating threat of climate change.”

A Justice Department memorandum of Biden’s order addresses “the goal of producing a set of recommendations for improving and modernizing regulatory review.”

“These recommendations should provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations,” the DoJ memo continued.

Biden’s order is “likely to do away with cost-benefit analysis by elevating unquantifiable aims as benefits and deny costs of regulation altogether,” Clyde Wayne news, a regulatory expert with the Competitive Enterprise Institute, observed last month.

“So, the aim is to put weight on the scales of whether or not to regulate such that the answer will always be in the affirmative, replacing market operation and civil society with government in the pursuit of a range of non-quantifiable goals, even without legislation from Congress,” he continued. “Agencies are being unleashed to issue guidance, memoranda, notices, circulars, bulletins, letters, interpretations and so on; all the stuff I like to call ‘regulatory dark matter.’”

The Biden order is a stark departure from President Trump’s policies on agency regulations. One of his first executive actions upon taking office in January 2017 was to issue an executive order requiring federal agencies to repeal two rules for every new one issued.

“I think the actual deregulation was less than promised. But what those requirements did was slow the pace of new regulations, and that did reduce uncertainty, gave, especially smaller companies, more confidence to hire and invest. And so I think that did contribute to the economic recovery before COVID,” Susan Dudley, director of the George Washington University Regulatory Studies Center, told the Federal News Network last month.

Among his orders to sort of ‘re-regulate’ the economy, Biden signed one revoking the Trump two-for-one order, I&I noted.

Leftists are cheering Biden’s actions, however, including The Huffington Post, which described them as “game-changing.”

The outlet reported that the regulator review order “could unleash a wave of stronger regulations to reduce income inequality, fight climate change and protect public health. Among left-leaning experts on regulation, it’s a signal that Biden could break with 40 years of conservative policy.”

Adds James Goodwin, a senior policy analyst at the Center for Progressive Reforms, “I realize what I’m about to say to you sounds absurd. It has the potential to be the most significant action Biden took on day one.”

I&I concludes: “Unfortunately, with this one executive order, Biden shows that he’s intent on giving regulators carte blanche to impose massive new rules on businesses and households, on virtually anything and everything they do, regardless of costs. There’s little else Biden has done so far that will have as wide-ranging an impact.”


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Jon Dougherty


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