Wednesday, January 20, 2020: Day One for President Biden Included, Among Many Actions, Revoking EO 13950
President Biden hit the ground running on his first day in office. Although not officially clocked in until noon, by the end of the day, he had signed 16 Presidential Actions covering a wide variety of issues. Those relevant to our reporting space include:
Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
This Order includes direction to the Executive Branch of the federal Government to identify methods to assess the equity of agency policies and actions and to then conduct such assessments within each agency. The Order specifically revoked EO 13950, and directed federal Executive Branch agencies to conduct further assessments of actions the agencies may have put in place to implement EO 13950:
“The heads of agencies covered by Executive Order 13950 shall review and identify proposed and existing agency actions related to or arising from Executive Order 13950. The head of each agency shall, within 60 days of the date of this Order, consider suspending, revising, or rescinding any such actions, including all agency actions to terminate or restrict contracts or grants pursuant to Executive Order 13950, as appropriate and consistent with applicable law.”
Editor’s Note: While it is legally difficult to simply revoke prior Executive Orders by signing a revocation Order, some Member of the public has to file suit to challenge any such withdrawal. It is uncertain whether any individual or company will step up to challenge this particular revocation since EO 13950 was so wildly unpopular. For more on the legal standards to rescind prior Presidential Executive Orders (and also agency Rules), see the DACA BLOG.
Executive Order Ordering Federal Executive Branch Agencies to Undertake EO 11246-like Preventative Maintenance Self-Audits to Prevent and Combat Sex Discrimination, including on the Basis of Gender Identity and/or Sexual Orientation
This Order instructs that “The head of each agency shall, as soon as practicable and in consultation with the Attorney General, as appropriate, review all existing orders, regulations, guidance documents, policies, programs, or other agency actions (“agency actions”)” and “consider whether to revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination…”
Federal Agency Follow-Up Reports
Within 100 days, each Agency will develop a plan to carry out actions that rectify previous actions inconsistent with this Order.
Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)
As predicted by John Fox, see his DACA blog from June 2020 for additional DACA information and the “Dreamers.”
Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing
Although most likely already in place by companies and institutions, this Order mandates that: “The heads of executive departments and agencies shall immediately take action, as appropriate and consistent with applicable law, to require compliance with CDC guidelines with respect to wearing masks, maintaining physical distance, and other public health measures by: on-duty or on-site Federal employees; on-site Federal contractors; and all persons in Federal buildings or on Federal lands.” (emphasis added)
So, if your company or institution places service personnel on a federal property, your employees and independent contractors will have to wear masks, and the type of masks, that agency prescribes.
Regulatory “Freeze” Pending Review
In a Memo to the Heads of Executive Departments and Agencies, Ronald A. Klain, Assistant to the President and Chief of Staff, on behalf of the President, directed the following actions:
- “Propose or issue no rule in any manner” (except in an emergency situation) “until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule.”
- For rules that have been sent to the OFR (Office of the Federal Register) but not published in the Federal Register, immediately withdraw them from the OFR for review and approval.
- For rules that have been published or issued, but have not taken effect, consider postponing the rules’ effective dates for 60 days, to review any questions of fact, law, and policy the rules may raise.
In the closing paragraph:
“Should actions be identified that were undertaken before noon on January 20, 2021, to frustrate the purpose underlying this memorandum, I may modify or extend this memorandum, pursuant to the direction of the President, to request that agency heads consider taking steps to address those actions.”
Note: These “Day 1 Midnight Regs Freeze Memos” have become commonplace in recent Presidential Administrations. The Klain Memo is a close copy of the “Freeze Memo” then Trump White House Chief of Staff Reince Priebus issued on January 20, 2017 (see details on the follow-up guidance on January 24, 2017).
What’s At Stake?
As we look back 60 days, there are a handful of Final Rules that could be affected.
In addition to these Final Rules, there have been various Technical Assistance Guides, Opinion Letters, Directives, MOUs, and several items open (or recently closed) for comments. For example, the verdict is still out on Scabby the Rat!