Input Stories

While some executive actions can be—and have been—removed with a stroke of the pen, others require more procedural steps. As manufacturers look ahead to the next few months, what can they expect on crucial issues from air quality to environmental permitting to labor policy?  

Taking on EOs: President Trump has already taken the first step in removing burdensome regs by reversing many Biden EOs.   

• Among these many reversals, which we covered on Wednesday, were many of Biden’s climate edicts. Trump also reversed Biden’s recission of his first-term directive mandating the removal of two regulations for the imposition of every new one, as we mentioned above.  

The regulatory freeze: Trump instituted a regulatory freeze on his first day (as most incoming presidents do). 

• The regulatory freeze halts every regulation that hasn’t been published in the Federal Register—whether it’s still being formulated or was finalized and awaiting publication.  
• For rules that were published in the Federal Register but have not yet taken effect, Trump recommended a 60-day pause to give agencies time to decide whether to rescind or revise rules.  

Sub-regulatory guidance: Everything below the level of an actual regulation—including guidelines, policy statements and opinion letters—can also be removed by the stroke of the president’s pen. 

Final rules: For final rules that have gone into effect already, the administration must use the same process to rescind them as it would for issuing a new rule. That means issuing notice and opening up a comment period, which the NAM and manufacturers can use to state their cases.  

• Rules that might soon be open for comment ahead of recission include the Biden administration’s needlessly strict air quality standards, as we discuss below. 

In the courts: Some Biden administration rules are being challenged in court—in many cases by the NAM itself. What happens in those situations? 

• The new administration can request that the court halt the litigation while it considers repealing or replacing regulations, or it can ask for the regulation to be remanded back to the agency. 
• However, the tactic of effectively overturning a rule by refusing to defend it hasn’t found favor with the courts, which see this as a way of avoiding the Administrative Procedure Act’s notice-and-comment requirements.
• The Trump administration can also decline to appeal if a legal challenge to a Biden regulation succeeds.
• A complication: Other parties—including nongovernmental organizations—frequently “intervene” to defend rules in court and will object to a termination of the litigation. You may remember that the NAM intervened to stop the Biden administration from abandoning a first-term Trump rule imposing oversight on proxy advisory firms. Although the Biden Securities and Exchange Commission declined to defend the rule on appeal to the D.C. Circuit, the NAM’s participation as intervenor has kept the case alive.  

Congressional Review Act: Last, the Republican majorities in Congress could unwind regulations made since around Aug. 1 using the Congressional Review Act. But this is a blunt instrument that prevents a similar rule from ever being proposed again. In his first term, President Trump successfully used the CRA to overturn 16 Obama-era regulations. 

The bottom line: The Trump administration has already taken many early actions to overturn burdensome regulations in its first week, but removing harmful regulations already in effect can take some time.  

• “In plowing ahead with so many problematic rules, the Biden administration ignored critical procedural requirements,” said NAM Deputy General Counsel for Litigation Erica Klenicki. “These missteps tee up the new administration with tremendous opportunities to retool or rescind those rules in a well-supported manner. The NAM looks forward to being a resource, and we are optimistic about the pro-manufacturing policies this regulatory rollback will yield.