Upon taking office in January, President Joe Biden wasted no time in setting the federal government on a regulatory path very different from his predecessor. On his first evening in office, he froze regulations in the pipeline and reversed President Donald J. Trump’s regulation-related executive orders. He also issued a memorandum on “modernizing regulatory review” that signaled continuity in some regulatory practices and potentially dramatic shifts in others.
The memorandum “reaffirms the basic principles set forth” in President Bill Clinton’s 1993 Executive Order 12,866 and President Barack Obama’s 2011 Executive Order 13,563. These longstanding, bipartisan principles call for agencies to analyze the effects of alternative regulatory approaches before they issue rules, with the goal of ensuring that federal policies do more good than harm. They are key to what I have called “regulatory humility,” which appreciates that no matter how well-intentioned and intelligent regulators are, they lack essential information on how policies will work in practice.
The ex ante regulatory impact analysis that these orders require holds regulators accountable to the public by making them show their work. Agencies must demonstrate that regulatory decisions are based on a balanced understanding of competing considerations, including a holistic, evidence-based assessment of all regulatory impacts—negative as well as positive, and unintended as well as intended.