This past week, CEI released our 2017 Ten Thousand Commandments annual regulatory report. Since it emphasizes the final calendar year of Barack Obama's administration, it serves as a benchmark by which President Trump's first year of regulation will be measured. The report contains historical tables as well.
We can already guess how things likely wind up; I don't think anyone has doubted that that Trump administration would issue considerably fewer regulations than Barack Obama did.
Trump had prominently proclaimed that 70 percent of regulations “can go.” More concretely, he issued the freeze he promised during the campaign, and an executive order requiring that agencies eliminate at least two rules before issuing any new rule, with a proviso net new regulatory costs agencies impose not exceed “zero.” (Costs have to be fully offset.)
Trump pledged also to speed up government permitting in infrastructure and manufacturing. He’s also signed 14 resolutions of disapproval ejecting some of Obama’s many last-minute regulations. He also kicked off reassessments of regulation in the financial sector.
Given all that, upon the release of the Ten Thousand Commandments report after about four months of Trump, we noted that final rules, whether ordinary and routine, or the so-called “significant” ones (meaning they have effects of around $100 million annually) were way down compared to Obama if one looked at the comparable interval.
Congress is back from Memorial Day break, and we’re now at 139 days, roughly four and a half months into the administration. Many eyes are on what Trump is doing, waiting to observe the ultimate effects on regulatory output initiatives like his “Comprehensive Plan for Reorganizing the Executive Branch,” as well as proposals in the Trump Budget to eliminate some agencies altogether and deeply cut others.
TRUMP FINAL RULES PUBLISHED SO FAR COMPARED TO OBAMA
So let’s compare the executive and independent agency rules President Trump’s has issued so far to the same period under President Obama in 2016, (Jan 20-June 7)
139 Days of Trump Regulations Compared to Obama (Jan 20-June 7)
Rules “Significant” Rules
Trump (2017) 1,063 76
Obama (2016) 1,139 136
The Trump administration has so far issued 1,063 rules, while Obama issued 1,139 rules during the corresponding period last year. Trump’s tally represents a seven percent decrease.
Now, one of the interesting thing about the administrative state is that getting rid of a rule requires issuing a “rule” also, to comply with notice-and-comment requirements of the Administrative Procedure Act.
Many of Trump’s rules have been delays of earlier rules that’s hadn’t reached their effective date, sometimes several at once, such as at the Environmental Protection Agency. And as noted, net new costs agencies impose must be zero. Furthermore, many dozens of rules issued were the likes of Federal Aviation Administration airworthiness directives and numerous Coast Guard scheduling guidelines such as drawbridge operations, which many people consider routine.
Since rule reductions look like rules too, the reduction in regulation under Trump is more dramatic that what the raw counts depict.
More importantly, if one looks at “significant” rules, those with $100 million impact, Trump’s agencies have issued 76 to date, while Obama’s issued 136 over the comparable period in 2016.
Trump’s “significant” rule flow is down 44 percent compared to Obama’s over the same period, not even taking into account that often Trump’s are deferrals or freezes.
RULES COOKING IN THE OVEN ARE WAY DOWN
The reduction in rules issued, and especially “significant” rules issued under Trump so far, made me wonder about the rules still in the oven. That is, the proposed rules; not the rules issued already (many of which are efforts to revoke rules) but the rules in the process of being created.
As noted, the final effects of Trump’s executive order executive branch reorganization, and the ultimate results of the regulatory overseers he’s put in place at agencies on such new rule creation (E.O. 13777, "Enforcing the Regulatory Reform Agenda") remain unclear.
Still, this atmosphere is likely to strongly influence what gets put into the regulatory pipeline in the first place.
Maybe anti-Trump agencies, with “resistance from within” attitudes highlighted by the Washington Post and liberals such as Robert Reich, are simply holding their proposals to spring upon Americans the first chance they get. One can probably safely assume that, unless legislative regulatory reform happens.
But for now, rules that agencies are issuing for public notice and comment are an even more interesting benchmark. Their volume implies either a higher or lower level of final rules (like those covered above) in the future.
If final rules are down under Trump, overall proposed rules are down even more so.
Trump's first-year regulatory sausage making isn’t just lower than Obama’s (looking at first and final year) however. It's way down compared to George W. Bush and Bill Clinton (the latter’s second term, for which data is available) as well, going by the Federal Register archives that contain data online since the mid-90s.
Trump Proposed Rules Compared to Predecessors (Jan 20-June 7)
Proposed Rules “Significant” Proposed Rules
Trump (2017) 591 36
Obama (2016) 931 153
Obama (2009) 705 95
Bush (2008) 946 141
Bush (2001) 894 55
Clinton (2000) 1063 102
Clinton (1997) 1257 98
Trump’s overall proposed rules in the pipeline are down 36 percent compared to Obama’s final year’s comparable interval (591 compared to Obama’s 931); and Trump’s “significant” proposed rules are down 76 percent from his predecessor (36 compared to Obama’s 153).
The bottom line? Big Regulation seems to have largely stopped in 2017, at least for the time being.
Other differences between administrations are dramatic too, but whether looking at predecessors’ first or final years (again, just Clinton’s second term in this tally), Trump is so far the least regulatory president of all. The closest “match” is George W. Bush having issued “just” 55 significant proposed rules in 2001; but that is still 53 percent above Trump’s count for the January 20-June 7 interval.
Trump’s mode so far is regulating bureaucrats rather than regulating the private sector, with rules to limit their rules. Even more importantly, more unswervingly than any other, the administration has incorporated regulatory dark matter into reforming the administrative state in both his freeze and the two-out requirement. This material consists of all the memoranda, guidance, notices, bulletins and other proclamations (including threats and bad publicity) with which bureaucrats create or influence policy, but that escape the (already inadequate) discipline of the 1946 Administrative Procedure Act.
All this seems significant in terms of history of the regulatory state. The drop between Clinton and Bush was dramatic, but otherwise last time we saw anything comparable to today’s reduction was when both regulations and Federal Register page counts dropped over a third under Reagan. But that didn’t last.
Similarly, the longevity of a Trump rule-making hiatus will depend upon Congress passing legislation such as the bipartisan 2017 Regulatory Accountability Act to codify the best elements of the past few decades of regulatory oversight executive orders, as well as enhance congressional accountability for what agencies do.