Expectations for the presidential transition
In this memorandum we identify the general phases that occur during a typical presidential transition (i.e., winding down of the current administration, transition plans for the new administration, and early days of the new administration) and what to expect, procedurally, during each phase. In this transition, many of the pre-inauguration steps have been compressed. We also explain the potential for Congress to use the Congressional Review Act (CRA) to rescind regulations issued in the final days of the Trump administration.
Phase 1: Trump administration winds down
Often, when an administration comes to an end and a different political party has gained control, the departing administration will seek to issue as many rules and guidance documents as possible before the inauguration. While the FDA and the USDA have remained active in the final weeks of the Trump administration, we have not seen the same flurry of activity as sometimes occurs, and although a handful of food-related rulemakings remain outstanding, it seems unlikely there will be a substantial influx of rules and guidance documents from either agency during the remaining days of the administration.
Phase 2 (Concurrent with Phase 1): Biden transition team ramps up
Concurrent with, but separate from, the wrap up of the Trump administration, the Biden transition team will spend the time leading up to the inauguration identifying potential issues for the administration’s policy agenda and vetting candidates for personnel appointments.
So far, President-elect Biden has named Xavier Becerra as his nominee for Secretary of Health and Human Services (HHS). As a Congressman, he helped pass the Affordable Care Act (ACA) and led the defense of the ACA in the Supreme Court as the Attorney General of California. If confirmed, Secretary-designate Becerra would be expected to defer to the FDA Commissioner to lead policy development in the area of food regulation. President-elect Biden has not yet formally named a nominee for FDA Commissioner. Note that the FDA Commissioner position requires Senate confirmation and could take months to complete, as it must compete for Senate floor time with hundreds of other similar positions.
President-elect Biden has named Tom Vilsack as his nominee for Secretary of the USDA. Secretary Vilsack served as Secretary of Agriculture for all eight years of the Obama administration, after serving two terms as governor of Iowa, and will be a familiar face for the agricultural sector.
Phase 3: Biden administration begins
It is customary for new administrations to impose a temporary freeze on new rulemaking, and we expect the Biden administration to continue this tradition. During the early days of the new administration, it also is possible that Congress may act to repeal recent Trump administration regulations using its authority under the rarely used Congressional Review Act (CRA).
i. Regulatory Moratorium
Once in office, President-elect Biden is likely to follow in the footsteps of every President since Ronald Reagan and institute a temporary moratorium on new regulations. Previous regulatory moratoria have lasted between 60 days to more than a year. Typically, the moratoria apply to substantive actions such as rules published in the Federal Register but could also extend to nonbinding guidance on high-visibility topics. Based on past transitions, a regulatory moratorium could include the following components:
- Freezing new rules until the new administration appointees can approve them;
- Withdrawing any final rules that have been sent to the Federal Register, but not yet published; or
- Temporarily postponing the effective dates of rules that have been published in the Federal Register but have not yet gone into effect.
These procedures would allow the Biden administration to review the Trump administration’s last-minute decisions and allow new appointees to get up to speed on issues before reviewing and approving any new regulations. Even after the moratorium ends, both the FDA and the USDA have a number of regulations currently under development that could be further delayed, abandoned, or revised under the Biden administration.
ii. Congressional Review Act
Following the 2020 election and the Georgia run-offs, the Democrats have retained control of the House and can cast the tie-breaking vote in the Senate. Congress therefore would have favorable conditions to exercise the CRA to overturn certain rules, and potentially guidance documents, that meet the CRA’s definition of a “rule,” issued near the end of the Trump administration.
The CRA requires agencies to provide reports to Congress on their rulemaking activities and establishes a set of procedures under which Congress may pass a resolution to overturn a regulation. In particular, the rules under the CRA allow the Senate to approve a joint resolution to overturn a regulation with a simple majority vote, rather than the 60 votes typically needed to pass legislation. Congress has 60 legislative days to approve a resolution to overturn a regulation. However, if Congress adjourns its annual session less than 60 legislative or session days after a rule is submitted to the House or Senate, then the period of time Congress has to act to overturn the regulation essentially resets to the next session of Congress. Importantly, whether a given rule is eligible to be overturned using the CRA requires calculating the days that Congress was in legislative session, not just calendar days, which is a complicated calculation.
The CRA procedure rarely is discussed except during changes in administration because the sitting president may veto a Congressional resolution to overturn a regulation and typically is inclined to do so to preserve the rules developed in his own administration. The CRA has only been used successfully to overturn a regulation following changes in administrations. When President Trump took office with Republican control of the House and Senate, Congress overturned 16 Obama administration-era regulations using the CRA. Prior to the Trump administration, the only time the CRA had been used successfully was in March of 2001 when Congress voted to overturn the Occupational Safety and Health Administration’s ergonomics rule—issued in November 2000 near the end of the Clinton administration—when Republicans controlled both houses of Congress and the White House.
The CRA’s procedural rules would allow Congress an opportunity to review a number of rules issued by the Trump administration in 2020. For instance, the HHS recently finalized a rule establishing sunset, or expiration dates, for virtually all of the HHS’s regulations, including all existing regulations currently administered by the FDA (SUNSET Rule), and the USDA’s Agriculture Marketing Service recently finalized a rule establishing criteria the Secretary would consider when evaluating whether conduct violated Section 202(b) of the Packers and Stockyards Act.1 These and other rules could potentially be subject to Congressional review under the CRA.
We will continue to monitor the Biden administration’s developing policy agenda. Please contact us if you have any questions.
Reference
1 At the time of this writing, the HHS has announced finalization of the SUNSET Rule, but it has not yet been published or scheduled for publication in the Federal Register; Undue and Unreasonable Preferences and Advantages under the Packers and Stockyards Act, 85 Fed. Reg. 79779 (11 Dec. 2020).
Authored by Martin Hahn, Brian Eyink, and Leigh Barcham.
