Update From Washington, D.C.
Biden-Harris Era Begins; White House Issues Executive Actions
January 21, 2021
On January 20, former Vice President Joe Biden was officially sworn in as the 46th president of the United States, with former California Senator Kamala Harris serving as his vice president. In a separate ceremony, Senator-designate Alex Padilla (D-CA) and Senators-elect Jon Ossoff (D-GA) and Raphael Warnock (D-GA) were also sworn in to their new positions, handing Democrats the thinnest of majorities in the upper chamber.
In one of his first actions as president, Biden signed 17 executive orders, memos, and proclamations covering a range of issues, many of which would undo actions taken by the outgoing Trump administration. While the president does have the ability to unilaterally and immediately reverse some policies and procedures put in place by his predecessor, there are instances where his authority is more limited. In these cases, Biden can only set in motion a series of executive reviews that will ultimately allow the new administration to nullify or replace Trump-era rules, regulations, and policies.
Below is a short summary of the actions taken by the new Biden administration:
Regulatory Freeze Pending Review: In a memorandum signed by White House Chief-of-Staff Ron Klain, executive departments and agencies have been instructed not to propose or issue any new rules until a department or agency head appointed by President Biden reviews and approves the action (exceptions are permitted for actions concerning emergencies or other urgent situations). For Trump-era rules that were already sent to the Office of the Federal Register, but not yet published, the memo directs officials to immediately withdraw them for further review.
With regard to rules that have been published in the Federal Register but have not yet taken effect, the memorandum directs officials to consider postponing the rules’ effective dates for 60 days for the purpose of reviewing any questions of fact, law, and policy the rules may raise. For any such rules, the memo instructs officials to consider opening a 30-day comment period to allow interested parties to provide comments and to consider pending petitions for reconsideration involving such rules. The full memorandum can be accessed here.
Protecting Public Health and the Environment: President Biden signed an Executive Order (EO) Wednesday that instructs agency heads to review actions taken under former President Trump that were harmful to public health, damaging to the environment, unsupported by the best available science, or otherwise not in the national interest. In addition, it calls on the Interior Department to review protected federal properties that were reduced in size or opened to commercial use during the Trump administration.
The Order also issues a temporary moratorium on all oil and natural gas leasing activities in the Arctic National Wildlife Refuge and revokes the permit for the Keystone XL pipeline project. It should be noted that the EO also instructs the Interior and Commerce Departments to review the new biological opinions (adopted in 2019) that govern water deliveries in California. The EO can be read in its entirety here.
Unified and Effective Response to Combat COVID-19: This Executive Order creates a new position – COVID-19 Response Coordinator – within the White House. The coordinator will be responsible for organizing efforts to produce and distribute vaccines and medical equipment. The EO can be accessed here.
Mask Mandate on Federal Property: This EO will require face coverings and physical distancing for everyone in federal buildings and on federal lands. The administration will simultaneously launch a “100 Day Masking Challenge” urging Americans to wear a mask. The text of the Order can be accessed here.
World Health Organization: In a letter to U.N. Secretary General Antonio Guterres, Biden asserts that the U.S. will remain a member of the World Health Organization (WHO). Without this action, the U.S. was set to withdraw from the WHO on July 6, 2021. The letter can be accessed here.
Extension of Moratorium on Evictions: This directive calls on the Centers for Disease Control and Prevention (CDC) to extend a ban on home evictions and foreclosures imposed last year. The EO calls for the moratorium, set to expire at the end of this month, to be extended through at least March 31. In addition, President Biden has directed the Departments of Veterans Affairs, Agriculture, and Housing and Urban Development to consider extending foreclosure restrictions and forbearance relief.
Pausing Federal Student Loan Payments: At the request of President Biden, the Department of Education will extend a pause on federal student-loan payments and collections and keep the interest rate at 0 percent. The announcement can be accessed here.
Paris Climate Agreement: In this executive action, Biden makes clear that the U.S. will reenter the Paris Climate Agreement. Under the 2015 accord, which was signed by the Obama administration, the U.S. pledged to significantly reduce greenhouse gas emissions (between 26 to 28 percent below 2005 levels) by 2025. The U.S. officially withdrew from the landmark agreement late last year after President Trump began the process in 2017. The proclamation can be accessed here.
Preventing Discrimination on the Basis of Gender Identity or Sexual Orientation: This Order, which can be accessed here, prohibits workplace discrimination based on gender identity and sexual orientation.
Census: This Executive Order revokes an effort by former President Trump to exclude undocumented immigrants from the decennial U.S. Census count. Pursuant to the EO, all residents, regardless of immigration status, will be included in the 10-year count that determines the size of congressional districts and how many Electoral College votes each state gets for the next decade. The full Order is available here.
Preserving and Fortifying DACA: President Biden has ordered the U.S. Attorney General and the Secretary of Homeland Security to strengthen and fortify the Deferred Action for Childhood Arrivals (DACA) program. DACA provides deportation protections to undocumented immigrants brought to the country as children. The memo can be accessed here.
Ending Discriminatory Bans on Entry to the United States: President Biden has officially revoked the travel ban – put in place by the Trump administration – that targeted Middle Eastern and African countries, most of which have majority Muslim populations. The proclamation can be read in its entirety here.
Immigration Enforcement Policies and Priorities: This directive repeals an executive order put in place by former President Trump that sought to crack down on the undocumented population by threatening to withhold federal funding from so-called sanctuary jurisdictions. Trump’s order also directed federal agencies to prioritize resources for immigration enforcement over other duties. The EO can be read in its entirety here.
Border Wall: Biden issued a proclamation that terminates an emergency declaration by Trump on the U.S.-Mexico border. In addition, the new president has ordered an immediate pause in construction on the southern barrier wall and has ordered a review of how best to redirect or repurpose remaining funds. The executive action can be accessed here.
Protecting Liberians Who Fled Civil War: President Biden has directed the Secretary of State and the Secretary of Homeland Security to extend through June 2022 a deportation deferral for Liberians living the in the U.S. who fled civil war. The memo can be accessed here.
Advancing Racial Equity: Under this EO, President Biden has ordered a whole-of government review that will require each federal department and agency to assess whether its policies disadvantage any demographic group. It also revokes two executive orders issued by Trump, including one that sought to ban diversity training for federal workers and another that established a controversial commission to teach U.S. history from an alternative perspective. It should be noted that the so-called 1776 Commission issued a report earlier this week that many historians say distorts the history of slavery in the country. The full EO can be accessed here.
Ethics Commitment by Executive Branch Personnel: The Biden-Harris administration will require political appointees in every executive agency to sign an ethics pledge as a condition of employment. The EO can be accessed here.
Modernizing Regulatory Review: Under a memo issued by President Biden, the heads of executive departments and agencies are directed to produce a set of recommendations for improving and modernizing the regulatory review process. These recommendations should provide concrete suggestions on how the regulatory review process can promote public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations. The directive can be accessed here.
Counties Urge Change to Child Welfare Law
This week, CSAC – along with the County Welfare Directors Association and the County Behavioral Health Directors Association of California – sent a letter to the California congressional delegation urging them to adopt legislation that would enable youth in certain congregate care facilities to continue receiving Medicaid-funded physical and behavioral health services once the Family First Prevention Services Act (FFPSA) is fully implemented. Under the FFPSA, a number of the new Qualified Residential Treatment Programs (QRTPs) will be categorized by the Centers for Medicare & Medicaid Services as an Institution for Mental Disease (IMD), thus disqualifying them for any Medi-Cal reimbursement for services provided to youth in those facilities.
Biden Releases COVID-19 Response Plan
President Biden recently unveiled his own national strategy to respond to the continuing coronavirus epidemic. The blueprint – entitled National Strategy for the COVID-19 Response and Pandemic Preparedness – includes a comprehensive vaccination plan, public health standards, including expanding masking and testing, as well as a plan to safely reopen schools and businesses while protecting workers. It should be noted that the strategy prioritizes regular engagement with state and local leaders and other stakeholders to guide policy and implementation. Read the Executive Summary here.
USDA Publishes Final Rule on Hemp
After more than two years of gathering input, the U.S. Department of Agriculture (USDA) this week finalized a rule governing the new hemp program authorized by the 2018 Farm Bill (PL 115-334). The so-called Domestic Hemp Production Program will provide the regulatory framework for future hemp production in the United States. Among other things, it covers the requirements for where the crop can be grown, testing standards, the disposal process for crops that don’t meet federal standards, and licensing protocols. The rule, which was published in the Federal Register on January 19 and will become effective on March 22, incorporates a number of modifications to regulations established under the Interim Final Rule (IFR).
Below are some of the more notable changes:
Negligence Standard: Under PL 115-334, hemp is defined as containing a tetrahydrocannabinol (THC) concentration of no more than 0.3 percent, and growers must dispose of crops that exceed this level. The IFR set the negligence threshold – the level at which farmers could be charged with intentionally growing cannabis – at 0.5 percent THC. Under the Final Rule, the threshold has been increased to 1 percent, giving hemp producers some additional flexibility.
Lab Testing: The IFR required that hemp be tested only at labs certified with the Drug Enforcement Administration (DEA). However, there is currently an insufficient number of DEA-registered labs to test all the anticipated hemp that will be produced in the coming year. Therefore, the rule delays enforcement of the requirement until January 1, 2022.
Timing of Sample Collection: The IFR required sampling of hemp plants 15 days before harvest. However, the final rule would provide a 30-day window to collect samples before harvest. This change should help prevent backlogs in testing.
Sampling Method: The Final Rule allows states and tribes to adopt a performance-based approach to sampling, although the state plans must first be submitted to USDA for approval.
Disposal Requirements: The Final Rule allows for alternative disposal methods for non-compliant crops. Producers will no longer need to use a DEA-registered reverse distributor or duly authorized Federal, State, Tribal, or local law enforcement officer to dispose of non-compliant plants.
In addition to publishing the rule, USDA has released supplemental guidance materials on its sampling, testing and disposal components. The guidance documents can be accessed here.
While the response from stakeholders has been mostly positive, there are still some aspects that hemp producers would like to see revised under the incoming Biden-Harris administration. One of the biggest complaints is the requirement to test at labs registered with the DEA. While the new rule delayed this requirement, producers want it completely removed. Finally, it should be noted that the new hemp rule will be impacted by the aforementioned regulatory freeze.