President Joe Biden is taking action to freeze or reverse a number of regulatory and other actions taken by the former administration. A memo from Ronald Klain, assistant to the president and chief of staff, outlines the immediate steps federal departments and agencies must take in order to provide the president’s appointees or designees the opportunity to review any new or pending rules, a common practice of new administrations. Several executive orders have also been issued. NCSL is closely tracking these actions in areas including education, taxes, environment, immigration, the census and others. NCSL will highlight Biden's presidential executive orders, directives and other actions in areas like the census, education, immigraton, health care, climate change and more in the coming weeks.
On Jan. 20, Biden issued the executive order “Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census.” This order revokes President Donald Trump’s executive order of July 11, 2019, and memorandum of July 21, 2020, that sought to exclude persons not in a lawful immigration status from being counted in the U.S. Census. Biden’s executive order requires all persons to be counted in the decennial census regardless of immigration status, as required by section 2a(a) of title 2 of the United States Code and the 14th amendment to the U.S. Constitution. This policy is also based on the executive branch’s “longstanding historical practice” and the goal of providing equal representation and high-quality census data to the states and therefore requires the commerce secretary to submit a report to the president and the states that reflects the “tabulation of total population by state that reflects the whole number of persons whose usual residence was in each state as of the designated census date … without regard to immigration status.”
Diversity, Equity and Inclusion
Memorandum on Advancing the Human Rights of Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQIA+) Persons Around the World: This memo directs executive departments and agencies engaged abroad to ensure that U.S. diplomacy and foreign assistance promote and protect the human rights of LGBTQIA+ people. Specifically, it directs the support of the following actions: combatting criminalization of LGBTQIA+ status or conduct abroad, protecting vulnerable LGBTQIA+ refugees and asylum seekers, foreign assistance to protect human rights and advance nondiscrimination, swift and meaningful U.S. response to human rights abuse of LGBTQIA+ people abroad, building coalitions of like-minded nations to engage in the fight against LGBTQIA+ discrimination and rescinding inconsistent policies and reporting on progress. Read more.
A Proclamation on National Black History Month, 2021: This proclamation called on the American people to honor the history and achievements of Black American people and to reflect on the centuries of struggle that have brought Americans to this time of reckoning, redemption and hope. Read more.
Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government: This order states that the Biden administration’s commitment to pursuing a comprehensive approach to advancing equity for all Americans will begin with conducting an equity assessment in federal agencies, allocating federal efforts, promoting equitable delivery of government benefits and equitable opportunities and engaging with members of underserved communities. It will create an Equitable Data Working Group, and rescinds the Trump administration’s 1776 Commission, which called for “patriotic education.” Read more.
EO on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation: This order provides protections from workplace discrimination based on gender identity or sexual orientation. Read more.
EO on Enabling All Qualified Americans to Serve Their Country in Uniform: The order reverses a Trump administration ban that banned transgender individuals from joining the military, and states that any American who is qualified to serve in the Armed Forces should be allowed to serve. Read more.
Memorandum Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States: This memorandum acknowledges the long-standing problem in the U.S. of harassment and violence against Asian Americans and Pacific Islanders (AAPI) and how these events have drastically increased in the past year. The memorandum directs the Department of Health and Human Services to coordinate with the COVID-19 Equity Task Force to issue guidance on best practices to advance cultural competency. It also directs the Department of Justice to partner with the AAPI communities to prevent harassment and hate crimes. Read more.
Memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships: This memorandum states that the Biden administration is committed to establishing federal respect for Tribal sovereignty and self-governance, strengthening Nation-to-Nation relations between the federal government and American Indian and Alaska Native Tribes. Read more.
EO on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities: The order acknowledges there are more than 2 million people currently incarcerated in the U.S. and that a disproportional number of those people are people of color and directors the U.S. attorney general to not renew Department of Justice contracts with privately operated criminal detention centers. Read more.
Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies: The memorandum acknowledges the role the federal government has historically played in implementing housing policies that have had racially discriminatory impacts. The memorandum also states that while the Fair Housing Act was passed by Congress more than 50 years ago that the creation of wealth through homeownership has remained unequal in the United States and that it is the policy of this administration to work with communities to end housing discrimination. Read more.
EO on Buying American Products: The executive order changes how domestic content is defined and measured for qualifying products as well as increasing the required threshold. It will also create a senior position at the Office of Management and Budget to oversee the process by which contractors can apply for waivers from the Buy American rules, with the goal of reducing the number of waivers granted. The order will redefine what can count as domestic content, create a public website so U.S. companies can more easily see government contract business and determine whether they could make a more competitive bid. Read more.
Biden Expands P-EBT Benefits for Children Missing School Meals: The order directs the Department of Agriculture to increase Pandemic-EBT benefits by 15%. The Pandemic-EBT program was created last spring to help replace the subsidized or free meals that tens of millions of children normally get at school. The order also aims to allow states to increase SNAP emergency benefits for those most in need. Read more.
Student Loan Relief: The presidential executive order continues the temporary suspension of payments and interest accrual on federal student loans held by the Department of Education until Sept. 30, 2021. Read more.
Environment and Energy
Executive Order on Climate Crisis – New Oil Leases Halted, Task Forces Formed, Environmental Justice Commissions Created
On Jan. 27, President Joe Biden issued an executive order to address the “climate crisis at home and abroad.” The order is aimed at “combating climate change” and not only directs the federal government to consider climate change in federal infrastructure investment and expand environmental justice priorities, but also includes several measures focused on the energy, environment and agricultural sectors.
Most notably, the order temporarily blocked new leases for oil and gas drilling on federal lands and offshore waters pending review, while also directing the federal government to look for ways to increase renewable energy production from offshore wind. Federal agencies were also ordered to “eliminate fossil fuel subsidies,” and to explore new measures to spur innovation and deployment of clean energy-related technologies and infrastructure.
The order directs the White House Council on Environmental Quality and the Office of Management and Budget to ensure that any federal infrastructure investment is made with the reduction in pollution in mind, and reverses rules from the previous administration which prohibited federal agencies from considering the effects of greenhouse gas emissions and climate change in their environmental reviews. The director of national intelligence is called onto develop an estimate on the security implications of climate change, and an interagency National Climate Task Force was developed to address the issue.
The U.S. Department of Agriculture is directed to solicit input from farmers, ranchers, and others within the community on how to best use federal programs to encourage agriculture practices which increase carbon storage and reduce carbon emissions. Currently, the USDA’s Conservation Reserve Program pays a yearly rental payment in exchange for farmers removing environmentally sensitive land from agricultural production and for planting species that will improve environmental quality. Additionally, the Department of Interior was called upon to work with USDA, other relevant agencies, and state and local stakeholders, to develop a plan to conserve at least 30% of national lands and waters by 2030.
Among others, the order works to address environmental justice issues by establishing new commissions to address concerns of those communities that live near pollution sources and begins an incitive to ensure 40% of federal investments within energy, transit and other programs are diverted to historically disadvantaged communities.
Executive Order on Environmental and Energy Issues: President Joe Biden issued several presidential actions involving environment and energy issues—ranging from a required review of federal regulations, to the revocation of existing federal permits, and changes to national land and sea monuments.
Notably, the order calls for an immediate review of federal agency actions taken during the previous administration, and if appropriate, to consider “suspending, revising or rescinding” the agency actions. Specifically, the president called for the agencies to consider “publishing for notice and comment a proposed rule suspending, revising, or rescinding,” 104 energy and environmental rules, including those on methane emissions standards, greenhouse gas emission and fuel economy standards, the Environmental Protection Administration’s scientific transparency rulemaking, and several efficiency standard rulemakings.
Additionally, the order placed a temporary moratorium of all activities related to oil and gas leasing in the Arctic National Wildlife Refuge, pending a new environmental impact analysis, and withdrew additional areas from oil and gas drilling. TransCanada’s Keystone XL pipeline permit to “construct, connect, operate, and maintain” pipeline facilities was revoked as well.
Within the order, the president established an Interagency Working Group on the Social Costs of Greenhouse Gasses (GHG) to develop a federal amount for the “social cost of carbon,” “social cost of nitrous oxide,” and “social cost of methane,”—the monetized damages associated with incremental increases in the associated GHG emissions. The developed “social costs” would be used in cost-benefit analysis for regulatory actions.
Among other actions, the order also revoked several orders issued by former President Donald Trump related to environmental and energy policy. For more information on this order, read NCSL’s Info Alert here.
Rejoining of the Paris Climate Accord: Biden signed a letter rejoining the 2015 Paris Agreement, undoing a 2017 decision by Trump. The Paris Agreement aims to limit global temperature rise within this century to below 2 degrees Celsius above pre-industrial levels, with an ideal pursuit of limiting the increase to 1.5 degrees Celsius. It does not require specific actions by any country though the agreement enables nations to address rising GHG emissions through a cooperative system that encourages and relies upon transparency and accountability.
Federal Emergency Management Agency (FEMA)
President Joe Biden Signs Executive Order Increasing FEMA Cost Share: The order would increase the federal cost share for the Federal Emergency Management Agency (FEMA) Public Assistance. The grant would provide 100% reimbursement for the cost of approved non-congregate sheltering in hotel and motels across the country through September 2021, including individuals experiencing homelessness and individuals of congregate living facilities. In addition, the order directs the FEMA to expedite the reimbursement of all eligible emergency work projects and provide an advance of the federal share on a percentage of the expected reimbursement. Read more.
Memorandum to Extend Federal Support to Governors’ Use of the National Guard to Respond to COVID-19 and to Increase Reimbursement and Other Assistance Provided to States: This measure directs the Federal Emergency Management Agency (FEMA) to fund 100% of the cost of activities associated with all mission assignments for the use of the National Guard for COVID-19 response. It directs FEMA to make Public Assistance Grant funding, emergency protective measures, available to state, local governments, tribal and territorial governments for the purpose of safely opening and operating eligible schools, child-care facilities, healthcare facilities, non-congregate shelters, domestic violence shelters, transit systems, and other eligible applicants. The measures specifically mentions personal protective equipment, disinfecting services, and supplies as an eligible expense for schools–reversing a prior administration policy, and in line with prior NCSL advocacy. The order makes this assistance available at a 100% federal cost share until Sept. 30, 2021. The order generally directs FEMA to provide advanced reimbursement for eligible emergency work projects for COVID-19 under the Public Assistance Grant.
Health and Human Services
EO on Improving and Expanding Access to Care and Treatments for COVID-19: The order is asking to accelerate the development of novel therapies to treat COVID-19 and improve all American’s access to quality and affordable healthcare. This will include having the secretary of Health and Human Services (HHS) in consultation with the director of the National Institutes of Health to develop a plan supporting a range of studies, develop a plan with non-governmental partners to support research in rural hospitals and other rural locations and consider steps to ensure that clinical trials include populations that have been historically underrepresented in such trials. The secretary of HHS will also promptly issue recommendations on how states and healthcare providers can increase the capacity of their healthcare workforces to address the COVID-19 pandemic.
EO on Ensuring a Data-Driven Response to COVID-19 and Future High-Consequence Public Health Threats: The heads of all executive departments and agencies will facilitate the gathering, sharing and publication of COVID-19 related data in coordination with the coordinator of the COVID-19 Response Coordinator. It will assist federal, state, local, tribal, and territorial authorities in developing and implementing policies to facilitate informed community decision-making. Relevant federal agencies will designate a senior official to serve as their agency’s lead to work on COVID-19 and pandemic-related data issues. In consultation with the COVID-19 Response Coordinator these officials will convene on the collection, provision and analysis of data regarding the COVID-19 response and share such data with state, local, tribal and territorial authorities.
Executive Order on Strengthening Medicaid and the Affordable Care Act: The order will allow the secretary of HHS to consider establishing a special enrollment period for uninsured and under-insured Americans to seek health care coverage through the federally facilitated marketplace. Relevant federal secretaries along with the heads of all other executive departments and agencies with authorities and responsibilities related to Medicaid and the ACA will as soon as practicable, review all existing regulations, orders, guidance documents and policies to determine whether such agency actions are inconsistent with the policy set for in this order. Read here for a factsheet on the order.
EO on Establishing the COVID-19 Pandemic Testing Board and Ensuring a Sustainable Public Health Workforce for COVID-19 and Other Biological Threats: Establishes a national COVID-19 testing and public health workforce strategy including: establishing a COVID-19 Pandemic Testing Board, coordinate federal government efforts to promote COVID-19 diagnostic and surveillance testing, make recommendations to the president with respect to prioritizing the federal government’s assistance to state, local, tribal and territorial authorities in order to expand testing and reduce disparities in access to testing, and identify barriers to access and use of testing to coordinate federal government efforts to increase testing for a variety of communities, populations and settings.
Memorandum on Protecting Women’s Health at Home and Abroad: Requests that the secretary of HHS to review the Title X rule from the previous administration and any other regulations governing the Title X program that impose undue restrictions on the use of federal funds or women’s access to complete medical information and shall consider, whether to suspend, revise or rescind or publish for notice and comment proposed rules suspending, revising or rescinding, those regulations.
EO on Protecting the Federal Workforce and Requiring Mask- Wearing: The federal workforce and individuals interacting with the federal workforce and to ensure the continuity of government services and activities, on-duty or on-site federal employees, on-site federal contractors and other individuals in federal buildings and lands should all wear masks, maintain physical distance and adhere to other public health measures, as provided in CDC guidance. The heads of executive departments and agencies shall immediately act, as appropriate and consistent with applicable law. The director of the Office of Management and Budget, the director of the Office of Personnel Management and the administrator of General Services, in coordination with the President’s Management Council and the coordinator of the COVID-19 response shall promptly issue guidance to assist heads of agencies. Heads of agencies will promptly consult, as appropriate, with state, local, tribal and territorial government officials and other federal employees and related parties. Read more.
EO on Organizing and Mobilizing the U.S. Government to Provide a Unified and Effective Response to Combat COVID-19: Creates a position of coordinator of the COVID-19 response and counselor to the president and takes other steps organizing the White House and the activities of the federal government to combat COVID-19 to prepare for future biological and pandemic threats. The coordinator and the position of deputy coordinator of the COVID-19 response will report directly to the president to advise and assist the president and executive departments and agencies in responding to the COVID-19 pandemic. Duties will include coordinating a government-wide effort to reduce disparities in the response, care and treatment of COVID-19 including racial and ethnic disparities. Read more.
Mortgage Relief and Foreclosure Protections Gets Extensions: President Biden’s order extends the foreclosure moratorium and the mortgage payment forbearance enrollment window through June 30. It also provides up to six months of additional mortgage payment forbearance, in three-month increments, for borrowers who entered forbearance on or before June 30, 2020. Read more.
President Signs Executive Order Redressing Discriminatory Housing Policies: Biden signed an executive order ordering the incoming secretary of Housing and Urban Development to examine the effects of President Donald Trump’s signature housing policy “Preserving Community and Neighborhood Choice.” Read more.
EO on Extending the Eviction Moratorium: President Joe Biden has instructed the Centers for Disease Control and Prevention (CDC) to extend the nationwide ban on evictions through March, 2021. The executive order also extends the foreclosure moratorium on government-backed mortgages, while also including those backed by the U.S. Department of Agriculture, Department of Veteran Affairs and the Department of Housing and Urban Development. The order also allows homeowners to apply for mortgage forbearance if it is needed. Read more.
“Executive Order on the Establishment of Interagency Task Force on the Reunification of Families”: This task force will include the secretary of Homeland Security as chair, the secretary of State as vice chair, secretary of Health and Human Services as vice chair, and the U.S. attorney general. The task force will seek to reunify over 600 children still separated from their parents following the prior administration’s “Zero Tolerance” policy.
“Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border”: This order directs the assistant to the president for National Security Affairs, the U.S. secretary of state, and attorney general, and the secretary of Homeland Security to jointly prepare the U.S. strategy for addressing the root causes of migration (the “Root Causes Strategy”) and the U.S. strategy for collaboratively managing migration in the region (the “Collaborative Management Strategy”). These are meant to address the root causes of migration in El Salvador, Guatemala and Honduras, encouraging domestic resources and capacity in those countries to foster sustainable societies there. It aims to improve processing for individuals eligible for refugee resettlement, and to coordinate with international and non-governmental organizations to develop policies and procedures for improved processing of asylum claims. In so doing, this order revokes several Trump-era executive actions on immigration.
“Executive order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”: This order initiates a review of all agency actions related to implementation of the public charge ground of inadmissibility and related ground of deportability. The order initiates a plan to streamline the naturalization process and reduce naturalization processing times. It also revokes a Trump executive order, “Enforcing the Legal Responsibilities of Sponsors of Aliens.”
On Jan. 20, Biden issued a presidential memorandum on “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA)” “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA).” This memorandum directs the attorney general and the secretary of homeland security to take appropriate actions to preserve and fortify DACA consistent with applicable law. President Barack Obama initiated the DACA directive in 2012 under which the Department of Homeland Security was able to exercise discretion with respect to removal of undocumented immigrants who were brought to the U.S. as children, have been law-abiding, and been in school or enlisted in the military. Under Biden’s memorandum, “DACA reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns and other considerations, and that work authorization will enable them to support themselves and their families.”
Executive Order on the Revision of Civil Immigration Enforcement Policies and Priorities: This measure reverses a prior executive order, “Enhancing Public Safety in the Interior of the United States,” and directs a Department of Homeland Security-wide review of immigration enforcement. It includes a 100-day moratorium on almost all deportations beginning Jan. 22, replacing the prior approach with interim enforcement that prioritizes national security threats, recent border arrivals, and other individuals deemed a public safety risk. Read more.
Southern Border of the U.S.
Proclamation on the Termination of Emergency with Respect to the Southern Border of the United States and Redirection of Funds Diverted to Border Wall Construction: This measure pauses work on each construction project on the southern border and wall, begins an assessment of the legality of the funding and contracting methods used to construct the wall, and pauses immediately the obligation of funds related to construction of the southern border wall—both funds appropriated and redirected–to the extent allowable by law. Read more.
U.S. Department of State
Proclamation on Ending Discriminatory Bans on Entry to the United States: This measure revokes all prior executive action taken by the previous administration to ban travel from certain countries. It also directs the U.S. Department of State to develop plans to reconsider visa denials issued under the ban. Read more.