With Congress unlikely to pass major legislation in 2024 — even passing a new budget is difficult — most policymaking will take place within the executive branch.
Last month, the Biden administration released its Fall 2023 “Unified Agenda of Regulatory and Deregulatory Actions.” The “Agenda,” as it’s commonly known, lists the planned regulations for all executive branch agencies for 2024 and beyond. The Agenda is published twice per year (in the fall and spring) as required by the Regulatory Flexibility Act.
The regulations listed in the Fall 2023 Agenda include ones on many significant issues and administration priorities. The Environmental Protection Agency and the Departments of Transportation and Energy plan to release numerous regulations intended to curb climate change. Health and Human Services has many rules, including important ones from the Food and Drug Administration. There are also crucial regulations forthcoming regarding the Endangered Species Act.
The question of when to issue these regulations will be critical from both a policy and a political perspective. If President Biden were a lame duck, this decision would be simple — his primary concern would be protecting his regulatory legacy from the Congressional Review Act (CRA).
The CRA allows Congress to bypass the filibuster and overturn executive branch regulations. But there are two important limitations. First, the resolution of disapproval must be signed by the president, which means that the CRA is generally only useful at the start of a new presidential term when a recently inaugurated president may gladly overturn his predecessor’s regulations. The second is that it must be used within 60 “congressional session days” of the issuance of the regulation. This generally means that only regulations issued after July (the exact date won’t be known until congressional schedules are set) are vulnerable in the next Congress. To protect their regulatory initiatives, the Biden administration will want to issue new regulations as soon as possible.
If President Biden had a comfortable lead in the polls for reelection, executive agencies would likely wait to complete their regulations. Many of the policy areas in which regulations are planned are politically sensitive. While some regulations will gain public support, many will be used as cudgels against the incumbent. Why take the risk of creating a political vulnerability when there will be four more years in which to complete the regulation?
Furthermore, issuing a regulation and insulating it from being overturned by the courts takes time. A party legally challenging a regulation may use the speed with which it was finalized as an argument that agencies ignored public comments or did not sufficiently analyze the questions surrounding the regulatory decision. The recent emergence of the major questions doctrine in Supreme Court jurisprudence makes this concern even more relevant.
Since President Biden is neither a lame duck nor an incumbent facing a comfortable reelection, his administration has to balance these competing concerns in thinking about the timing of finalizing regulations. If the administration issues them too soon, an opponent who is likely to make regulation a central campaign issue will decry government overreach. Issue them too late and lose the election, and your opponent could happily sign congressional resolutions overturning your key initiatives.
The timing of final regulations is, of course, not entirely within the president’s control. Government agencies move at their own pace and are likely to be particularly concerned about the legal survival of their regulatory priorities.
But the final step in the regulatory process is review by the Office of Management and Budget, which reports to the president. Once the regulations arrive there, the timing question will be the center of many internal debates. How those debates are resolved will affect both the Biden presidency and its legacy.