How “Y.O.L.O. Joe” Can Beat The Lame Duck

President Joe Biden has roughly two months left before he hands the reins to another Trump administration. Can he do anything during this lame-duck period to safeguard federal institutions and government protections from the coming deregulation bomb? 

According to experts, the answer is yes. 

The Biden administration and Democratic majority in the Senate can fill crucial regulatory and judicial roles and make other moves that can serve as guardrails against the next four years of deregulatory and pro-business policies. 

“I’ve heard many folks calling this moment in time ‘Y.O.L.O. Joe,’” said Lisa Gilbert, the co-president of consumer advocacy watchdog group Public Citizen. Biden needs “to really think about the things that [the administration] can do right now to create speed bumps, to lock the doors, if you will.” 

The following steps, as suggested by experts and consumer advocates, might help establish critical safeguards for the years ahead. 

Appoint Key Regulatory Heads 

While President Biden is still in office, he has the power to nominate hundreds of appointees to government positions. According to the nonpartisan U.S. Government Accountability Office, there are currently almost 700 vacancies across a wide swath of agencies. 

Along with filling these vacancies, Biden can renominate a number of agency heads whose terms are set to expire during Trump’s second administration. Presidents can renominate or propose a replacement for presidential appointments during their time in office, even if the president’s term ends by the time the appointee steps in. After they’re nominated, these appointees must be confirmed by a simple majority. Democrats have a 51-seat majority in the Senate until Jan. 3. 

Advocates have urged Democrats to fill as many independent agency positions as possible while they still can — focusing on positions with statutory removal protection, which limit or restrict the President’s ability to remove federal employees from their positions. 

“If there is not a protection, then you’re inviting Trump to fire them on Day One,” said Jeff Hauser, executive director of the anti-corruption group The Revolving Door Project, a nonprofit research group that scrutinizes conflicts of interest among executive branch appointees.  

Senate Democrats and the White House could also opt to recess the Senate between now and the end of the year, therefore allowing Biden to make a number of critical recess appointments. 

Biden “should get in place every person who will have removal protection before the end of his term, ideally via Senate confirmation — and Plan B, via recess appointment,” Hauser said. 

Advocates expect Trump to immediately begin rolling back regulations on issues affecting the health, safety, and financial security of millions of Americans. 

Earlier this month, referring to his plan to have billionaire executive Elon Musk and entrepreneur Vivek Ramaswamy spearhead a new Department of Government Efficiency, Trump said, “Together, these two wonderful Americans will pave the way for my administration to dismantle government bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure federal agencies — essential to the ‘Save America’ movement.”

According to experts at the Revolving Door Project, critical appointments with statutory removal protection include renominating Lina Khan, chair of the Federal Trade Commission and the government’s top antitrust regulator. Khan, whose term technically expired this September, has used the agency to pursue an aggressive antitrust policy, including suing Amazon, Apple, and Google over anticompetitive economic conduct, banning noncompete agreements for workers, and calling for increased crackdowns on cryptocurrency scams. Consequently, she has faced significant criticism from Big Tech and Wall Street. 

Two other priority efforts could be to renominate Susan Grundmann as chair of the Federal Labor Relations Authority, which oversees two million federal employees’ labor rights, and renominate Raymond Limon as vice-chairman of the Merit Systems Protection Board, which protects federal employees from partisan and unfair workplace practices. Both of these officials’ terms expire next year, and experts say their appointment could help strengthen federal worker protections and safeguard agencies from significant financial cuts and layoffs.

Confirm Biden’s Nominees 

Along with Biden nominating key government officials in the weeks ahead, advocates say the Senate needs to prioritize approving outstanding nominations to top regulatory agencies. Right now, there are 78 nominees being considered by the Senate. 

“We absolutely think… everyone there should be focused on appointments, ensuring that we move through outstanding nominees, particularly for commissions that are independent,” said Gilbert. 

Earlier this month, after reporting from The Lever revealed that the confirmation of Biden’s choice for top anti-corruption enforcer had been stalled for more than a year, the Senate successfully confirmed David Huitema as director of the Office of Government Ethics. The department, which monitors corruption issues at more than 130 federal agencies, will determine whether Trump’s presidential nominees must divest assets to avoid conflicts of interest and, if so, whether they score a major tax break.

Other nominees waiting to be confirmed include Caroline Crenshaw, Biden’s choice for commissioner at the Securities and Exchange Commission (SEC), which is responsible for policing the financial industry. The SEC will be pivotal in the years ahead, particularly as the ascendant cryptocurrency industry pushes Trump to weaken regulatory efforts, undermining investor protections and jeopardizing financial markets. Recently, SEC chair Gary Gensler announced he will step down this January, opening the door for Trump to appoint a new agency head and making Crenshaw’s confirmation all the more important. 

Another outstanding matter is confirming attorney Mark Eskenazi to the Occupational Safety and Health Review Commission, an independent federal agency that handles work-related safety and health disputes. This commission will likely be increasingly vital, as many expect the Trump administration to repeat its history of rolling back worker safety inspections.  

Fill Judicial Vacancies 

There are also dozens of empty judicial slots in federal courts across the country that could be filled before Trump and a Republican Senate majority take office in January. Following a judicial nomination by the president, the Senate holds a public hearing and then votes to confirm or reject the president’s nominee.  

Judicial appointments are crucial in shaping the country’s legal landscape and are responsible for decades of civil rights, environmental, and criminal policies. A second Trump presidency could lead to a deluge of new far-right judges. From 2017 to 2020, Trump appointed 234 judges to the federal bench — a record amount for a single four-year term. In his first two years in office, he pushed nearly four times as many judicial confirmations compared to Obama’s final two years.

Trump’s appointments included three Supreme Court judges championed by his judicial advisor Leonard Leo, a rightwing legal activist who’s using his billion-dollar dark money network to reshape the country along conservative lines. Trump’s Supreme Court picks and other Leo efforts were pivotal in the high court overturning federal abortion protections in 2022.

To limit Trump’s options as much as possible, advocates say it’s imperative that Senate Democrats confirm outstanding judicial nominees before January. 

“The president should be working with the Senate, keeping the Senate in session day and night to confirm both judges and independent agency regulators,” said Hauser. 

Democratic senators like Elizabeth Warren (D-Mass.) agree. “Senate Majority Leader Chuck Schumer must use every minute of the end-of-year legislative session to confirm federal judges and key regulators — none of whom can be removed by the next president,” Warren wrote in a recent Time op-ed.

Democrats appear to have taken the hint. Taking advantage of missing Republican lawmakers, the Senate recently confirmed the 219th judge under Biden’s administration, 15 short of the number confirmed during Trump’s first term. Biden has announced 12 other judicial nominees who are still waiting to be confirmed. 

Earlier this month, Trump took to social media to claim that “no Judges should be approved during this period of time because the Democrats are looking to ram through their Judges as the Republicans fight over Leadership. THIS IS NOT ACCEPTABLE.” 

Left unsaid: One out of every 14 judges confirmed during Trump’s first presidency were confirmed during the lame-duck session following his reelection loss in 2020. 

Disclose Key Information

While President Biden still oversees the Department of Justice and the Office of Information Policy, he could redirect resources toward fulfilling outstanding Freedom of Information Act (FOIA) requests and publishing other declassified materials. 

The 1966 act requires the federal government to disclose documents and records requested by the public with limited exemptions. Advocates say it’s vital for the White House to expedite as many outstanding FOIA requests as possible, as the backlog will likely balloon with Trump back in the White House.

“Getting ready for Freedom of Information Act requests is not the sexiest thing to talk about, Gilbert added. “But [it’s] important to understand what’s happening so that we can fight back.” Advocates say 

The Trump administration’s efforts to avoid transparency during his first term are well documented. 

The first Trump administration waged a “war on transparency,” instructing staffers at major agencies including the Department of the Interior, the Environmental Protection Agency, and the Department of Health and Human Services to limit interactions with the press and curb their responses to FOIA requests. Trump’s pick to head the Centers for Disease Control and Prevention, Dr. Robert Redfield, was accused by staff of instructing them to delete email correspondence during the pandemic. 

A 2021 report by the Associated Press found the U.S. government censored, withheld, or said it couldn’t find records requested by the public more often than at any other point in the past decade. FOIA lawsuits over withheld records sharply increased during Trump’s first year in office, even though under his predecessor, Obama, government officials set records for FOIA non-compliance. 

Trump’s political machine found other ways to hide information. According to documents obtained by the government watchdog group American Oversight, key officials in the Trump White House repeatedly abused private communications channels to surreptitiously conduct government business. And during Trump’s first term in office, thousands of government web pages with information about climate change and the benefits of renewable energy were reportedly wiped from the internet.

By making scientific data, intelligence reports, and even records from Trump’s first term public now, the Biden administration can help disseminate information that Trump might soon try to suppress or eradicate.

“There’s a lot of information within the purview of the government about corporations and about the government itself — and as much as can be made visible, the better,” said Hauser. 

More specifically, advocates say they’d like President Biden to instruct the Department of Homeland Security to make public as much data as it can about existing Customs and Border Protection and Immigrations and Customs Enforcement detentions, including the identities of those held in custody and the duration and conditions of their detention. That way, activists will have more data they can use to track Trump’s plans for military-assisted mass deportations. 

“We want all of that disclosed because there is a genuine chance that, given the scale of what the Trump administration has planned, people could just disappear into federal custody,” said Sarah Turberville, director of the Constitution Project at the independent watchdog group Project On Government Oversight.

What’s Next?

Though advocates maintain there’s still plenty of work to be accomplished before Trump’s inauguration, they stress that the reality remains: The coming years will likely harm government efforts designed to help people.

“I think that things are going to be bad — and we should not really be looking for silver linings as such because that would diminish how bad things are going to get for a lot of vulnerable people,” said Hauser. 

There is little doubt Trump will pursue many of the policies proposed in Project 2025, a radical plan proposed by the right-wing Heritage Foundation to dismantle many parts of the government under a Trump administration.  

However, “eventually this [trend] is going to reverse,” said Hauser. And these rebuilding efforts should be more ambitious than the policies that came before to help protect against future government deregulation efforts long after Trump is gone, Hauser added

“I think it’s imperative that we figure out how we can recover from this Trump administration in a more self-sustaining way than the 2018 and 2020 [Democratic] victories created,” said Hauser.