Trump’s Busy First Week In Regulation

The bitter cold weather in Washington DC last Monday forced President Trump to move his inauguration indoors to the Capitol Rotunda, but he followed that with a rally-like appearance before a larger audience in the Capital One Arena. There, he signed a series of executive orders and tossed the black sharpie signing pens into the crowd.

While the showmanship was unusual, many of those first day actions were predictable. Let’s review those as well as some surprises.

Regulation Freeze

It has become a tradition for the incoming White House Chief of Staff on a president’s first day to issue a memorandum to agencies temporarily freezing regulatory activity until the new policy officials can evaluate them. Trump issued the memorandum himself on January 20th. It first directs agencies not to propose or issue any new regulations “until a department or agency head appointed or designated by the President after noon on January 20, 2025, reviews and approves the rule.” Second, it directs them to withdraw any actions already submitted to the Office of the Federal Register but not yet published. Third, it tells agencies to consider postponing for 60 days rules that have been issued but are not yet effective, and where appropriate to “consider opening a comment period to allow interested parties to provide comments about issues of fact, law, and policy.” It also directs agencies to “consider further delaying, or publishing for notice and comment, proposed rules” beyond the 60-day period.

This freeze did not come as a surprise to the Biden administration. It had completed its regulatory priorities well before January, so that only a handful of regulations were left to be paused or withdrawn from the Federal Register.

Revoke Biden Executive Orders

The very first executive order President Trump signed on the Capital One stage was E.O. 14145, “Initial Rescissions of Harmful Executive Orders and Actions,” which rescinds 78 of President Biden’s orders and memoranda. Among these was Biden’s own day-one order in 2021 that had rescinded a slew of Trump regulatory orders. So, does an order rescinding an order that rescinded an order automatically reinstate the previous order? There’s some disagreement on that question, but judging from other Trump statements, I think that was the intent. That means that Trump 45’s orders, notably those imposing a two-for-one regulatory offset requirement, creating regulatory review officers in agencies and requiring guidance documents to be publicly available may all be back in effect.

E.O. 14145 also rescinds Biden’s 2023 “Modernizing Regulatory Review” executive order, which directed the Office of Management and Budget (OMB) to revise guidance on conducting regulatory impact analysis (Circular A-4), among other things. In response to the Biden order, OMB issued a new circular in November 2023 (which I’ve opined on here). I don’t think Trump’s rescission automatically reverts the regulatory guidance to the previous 2003 version, even though other Trump orders reference the earlier version. However, it does instruct the directors of the White House Domestic Policy Council and National Economic Council (NEC) to review all federal government actions taken pursuant to the rescinded actions “and take necessary steps to rescind, replace, or amend such actions as appropriate.”

More is certainly coming on this issue.

Unleash American Energy

Trump also signed E.O. 14162, Unleashing American Energy, on his first afternoon. Among other things, it revokes a dozen Biden orders related to energy, environmental and climate matters, and directs the administration to work with the NEC, OMB, and the Attorney General to “suspend, revise, or rescind all agency actions identified as unduly burdensome” on the “identification, development, or use of domestic energy resources,” or restricting “consumer choice of vehicles and appliances.” The order also directs agencies to “expedite and simplify the permitting process,” including by revising regulations and guidance on implementing the National Environmental Policy Act.

Another section of the order delves into the analysis agencies use to support permitting and regulatory decisions, directing them to “adhere to only the relevant legislated requirements for environmental considerations,” and “not use methodologies that are arbitrary or ideologically motivated.” Specifically, it directs the Environmental Protection Agency (EPA) to issue new guidelines within 60 days and consider “eliminating the ‘social cost of carbon’ calculation from any Federal permitting or regulatory decision.” Within 30 days, EPA is to work with other relevant agencies to submit recommendations to OMB “on the legality and continuing applicability” of EPA’s 2009 “endangerment finding,” which is the basis for EPA’s regulation of greenhouse gases under the Clean Air Act.

Department of Government Efficiency

E.O. 14165 follows up on Trump’s campaign promise to establish a “Department of Government Efficiency” or DOGE. Despite the broad scope and ambitious goals expressed during the campaign, the purview of the order appears relatively modest, directing DOGE to “commence a Software Modernization Initiative to improve the quality and efficiency of government-wide software, network infrastructure, and information technology (IT) systems,” including promoting “inter-operability between agency networks and systems, ensur[ing] data integrity, and facilitate[ing] responsible data collection and synchronization.”

In terms of structure, the order renames the United States Digital Service—established in 2014 to address the rocky rollout of the Affordable Care Act exchanges—the “U.S. DOGE Service” (USDS), with a director who reports to the White House Chief of Staff. The order directs each agency head to establish, in consultation with the USDS director, DOGE teams that could include Special Government Employees not subject to civil service rules. Structuring DOGE this way may moot some concerns (and lawsuits) over the expectation that it would operate as an advisory committee without the public transparency requirements of the Federal Advisory Committee Act.

The order does not specify a role for Elon Musk in this structure, and how he might use it to achieve his stated ambitions for dramatically shrinking the government is unclear.

Actions Not (Yet) Taken

It was certainly a busy first week for regulatory practice, but a few things were notably absent. In addition to the apparent smaller scope for DOGE, there was no direction regarding the president’s promised mandate that agencies remove ten regulations for every one issued. There is even uncertainty, noted above, about whether his actions restored his first term orders on regulatory budgeting, guidance documents, and more. The coming weeks will shed more light on President Trump’s regulatory agenda for the next four years.