Scholars discuss President Biden’s executive order that seeks to modernize the regulatory review process.
On his first day as President, Joe Biden quickly reversed many of the Trump Administration’s key policies by signing nearly 20 executive orders, including rejoining the Paris Agreement, lifting the restrictions on entry to the United States from Muslim-majority countries, and creating a mask mandate for federal buildings.
To address the many social, economic, environmental, and public health challenges that the United States faces, President Biden also signed a presidential memorandum that charges the director of the Office of Management and Budget (OMB) and the heads of regulatory agencies to recommend revisions to the existing White House regulatory review process that will help “ensure swift and effective federal action.”
Among the changes President Biden envisions is a more proactive role for the Office of Information and Regulatory Affairs, which for nearly 40 years has been responsible for reviewing benefit-cost analyses on prospective agency regulations. Some experts argue, however, that benefit-cost analysis may fall short of evaluating a regulation’s expected impacts on the public.
President Biden’s executive order still endorses the use of benefit-cost analysis, but it also seeks to address its potential shortcomings. Calling for regulatory policy and review to promote economic development, social welfare, and racial justice, President Biden directed OMB and regulatory agencies to consider the potential “distributional consequences” of regulations, particularly consequences that would disadvantage vulnerable populations within society.
In this series of essays, leading scholars analyze President Biden’s “Modernizing Regulatory Review” memorandum. They consider how the role of the Office of Information and Regulatory Affairs might change under the new Administration and the actions agencies might take to address President Biden’s call for an increased focus on public health, social welfare, and racial justice in the development of regulatory policy. They also revisit the role of benefit-cost analysis in assessing new proposals through the regulatory review process.
This series includes contributions from the following scholars: Lisa Schultz Bressman, Vanderbilt Law School; Susan E. Dudley, George Washington University Regulatory Studies Center; Michael Livermore, University of Virginia School of Law; Richard L. Revesz, New York University School of Law; Stuart Shapiro, Rutgers University; and Rena Steinzor, University of Maryland Carey Law School.
February 15, 2021 | Stuart Shapiro, Edward J. Bloustein School of Planning and Public Policy at Rutgers University
Given that regulation has, and will always have, redistributive effects, regulators should strive to ensure that regulatory analyses include a more complete understanding of who those impacts help and hurt.
February 15, 2021 | Rena Steinzor, University of Maryland Carey Law School
The Biden Administration will improve regulatory review only if it elevates the substantive and political judgments of agency administrators over the repressive instincts of the small cadre of economists whose power has varied depending on OIRA’s leadership.
February 16, 2021 | Richard L. Revesz, New York University School of Law
After four decades of a relatively stable approach to regulatory review, President Biden’s memorandum opens the doors to significant reform while keeping the core architecture of regulatory review in place.
February 17, 2021 | Michael Livermore, University of Virginia School of Law
After a four-year experiment in abandoning norms of good governance, the Biden memorandum should be profoundly comforting to anyone who cares about cultivating a regulatory system that can deliver on its promise of improving the well-being of the American people.
February 18, 2021 | Lisa Schultz Bressman, Vanderbilt Law School
Enlisting the Office of Information and Regulatory Affairs to help proactively address the nation’s problems would allow President Biden to follow through on his goal of promoting political accountability in the regulatory review process. Only time will tell whether President Biden flips the mission of regulatory review.
February 19, 2021 | Susan E. Dudley, George Washington University Regulatory Studies Center
President Biden’s memorandum on “modernizing regulatory review” signals continuity in some regulatory practices and potentially dramatic shifts in others. In implementing it, a commitment to regulatory humility can avoid changes that might cause more harm than good.