The majority decision in Humane Society of the United States v. Department of Agriculture (USDA) has made it more difficult for newly inaugurated presidents to undo the regulatory agenda of the previous administration. In July, the DC Circuit Court found that federal agencies unlawfully withdrew a final rule that appeared for public inspection in the Federal Register because the agency did not use the notice-and-comment process. In a prior article, I summarized the court case that prompted this change and discussed its implications, such as extending the midnight period at the end of a president’s tenure. But assessing the scope of the change, in addition to its nature, is relevant to understanding the policy impacts.
The Office of the Federal Register publishes government documents for public inspection each business day. Public inspection offers a preview of documents—including rules, proposed rules, agency notices, and presidential memoranda—that will be officially published in a subsequent issue of the Federal Register.
I used data from the past two presidential transitions to quantify the number and types of public inspection documents that newly inaugurated presidents withdrew. This analysis produced several findings: 1) a relatively small number of documents are affected; 2) a few important documents were withdrawn before publication during each transition; 3) President Trump was more active than President Biden in withdrawing posted but unpublished rules. Even if small in number, the withdrawals have had a meaningful effect by preventing significant regulations of the outgoing administration from being published.