Modernizing regulatory review - Memorandum from the President

Joe Biden has issued a MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES on modernizing regulatory review by ordering the Director of the Office of Management and Budget (OMB).  the Director is to work with Department heads Not to reduce regulations, but rather to maximize their effectiveness in meeting the Biden-Harris administration's progressive policy priorities. 

These priorities and the emphasis on expertise will confront the views of the six justices who are historically hostile to the administrative regulatory state.  The Biden administration can be expected to look for courts to keep their hands off its regulatory policy initiatives - particularly by showing deference to agency scientific expertise which receives renewed emphasis.  Destined for the dustbin is the Trump EO 13771 which mandated eliminating two regulations for every new one issued.

Prominent among them is Neil Gorsuch who in 2019 wrote

Deference to agency expertise will be expected of the courts - likely clashing with Neil Gorsuch who in a mildly disappointed concurrence in Kisor v. Wilkie, Secretary of the VA (2019) wrote  

“Overruling Auer would have taken us directly back to Skidmore, liberating courts to decide cases based on their independent judgment and “follow [the] agency’s [view] only to the extent it is persuasive.”

 A few excerpts from the Memorandum are below. 

SUBJECT: Modernizing Regulatory Review

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:Sec. 2.  Implementation.  (a)  I therefore direct the Director of OMB, in consultation with representatives of executive departments and agencies (agencies), as appropriate and as soon as practicable, to begin a process with 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 recommendations should also include proposals that would ensure that regulatory review serves as a tool to affirmatively promote regulations that advance these values.  These recommendations should be informed by public engagement with relevant stakeholders. 

(b)  In particular, the recommendations should: 

(i)    identify ways to modernize and improve the regulatory review process, including through revisions to OMB’s Circular A-4, Regulatory Analysis, 68 Fed. Reg. 58,366 (Oct. 9, 2003), to ensure that the review process promotes policies that reflect new developments in scientific and economic understanding, fully accounts for regulatory benefits that are difficult or impossible to quantify, and does not have harmful anti-regulatory or deregulatory effects;