Conservatives are stepping up efforts to prevent President Joe Biden from legislating via executive order, a tactic the White House is likely to embrace further if Democrats lose control of Congress this year.
Biden has already attempted many unilateral actions through executive orders or executive branch agencies, such as the federal mask and vaccine mandates, the Securities and Exchange Commission’s climate disclosure rule, and a pro-transgender interpretation of Title IX. Such moves may become even more frequent following the midterm elections if Biden takes a go-it-alone, pen-and-phone strategy to advance his agenda.
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In preparation for this and to fight current executive proposals, conservatives are sharpening their advocacy tools to make sure their voices are heard within the White House.
Many of the proposed rule changes require a public comment process, during which they can be slowed down or even defeated by popular backlash. This is a tactic left-leaning advocates leaned into more than a decade ago and that conservatives are now capitalizing on, according to Heritage Action Executive Director Jessica Anderson.
“What I hear so much while I’m on the road is: ‘What can we do to impact the Biden regime?’” Anderson said. “There’s a lot of frustration where people feel like they’re calling a member of Congress and nothing happens because Republicans don’t have control.”
In many cases, they can turn away from the Capitol and straight to the White House.
Those folks are now being directed to submit unique public comments during the rule-making process as a way of making their presence felt.
Heritage Action’s first big push came last summer when the Department of Education proposed plans to fund grants for programs based on critical race theory. Heritage pushed a toolkit and sent activists to the Federal Register. More than 35,000 public comments were sent in on the proposed rule ahead of the deadline, and the Education Department later walked back its plans.
Conservatives similarly rallied against proposed Occupational Safety and Health Administration rules requiring vaccine mandates among private employers, sending in more than 68,000 mostly negative comments before the rule was struck down in the courts.
Such public comments are required under the 1946 Administrative Procedures Act as a way to ensure transparency, which has become especially important as Congress gradually ceded powers to various federal agencies. Proposed new regulations must be published in the Federal Register and subject to public comment periods before being finalized.
The federal mask mandate, which Biden created via executive order the day he took office, was struck down in part because it circumvented the required comment period for federal rulemaking. That wasn’t the administration’s only violation of APA norms. The typical public comment process lasts for two months, but the Biden administration cut that down to just one month for proposed rules regarding charter schools.
“By us engaging more forcefully and strategically in their rulemaking process, we’ll be in the position to point out when the Biden administration is trying to circumvent and prevent Americans from weighing in,” said Anderson.
Such efforts are now underway again. The SEC’s proposed rule that would compel companies to disclose climate-related risks is up for public comment through June 17. Heritage has again issued a toolkit for conservatives hoping to weigh in, complete with a link to submit comments.
Public comments aren’t yet being accepted for the pro-transgender interpretation of Title IX, but efforts are already underway to solicit and educate voters on how to weigh in there as well.
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For now, most people aren’t even aware that they can interact directly with an administration in this way, but that may change as efforts to publicize and promote the public comment process continue and as Biden turns toward executive action with most of his agenda stalled in Congress.
“We should have been doing this a long time ago,” said Anderson. “It’s really significant, and we’re at a turning point now where voters can weigh in and hopefully make a difference.”
