‘Tis the season. As midterms approach, we’re seeing “agendas” emerge from aspirational conservatives nominally opposed to Biden’s transformation of the United States. These anti-progressive inventories unsurprising highlight the border wall, crime, election integrity, energy independence, confronting China, underemployment and the economy, the debt, restoration of federalism, and opposition to big tech and to controversial racial and sexual topics presented in elementary school.
Examples include the March 2022 Freedom Agenda from Mike Pence and an 11-point plan from Rick Scott. Both take a swipe at the saturation of America’s public and private institutions with left-wing ideologies, with Scott mounting the attack on socialism:
Socialism is un-American and always leads to poverty and oppression. We will stop it. We will shrink the federal government, reduce the government workforce by 25% in 5 years, sell government buildings and assets, and get rid of the old, slow, closed, top-down, government-run-everything system we have today.
The major factor making limited government impossible is perhaps not even the unchecked spending, but the administrative state and endless regulatory intervention. Jumpstarted by COVID spending and interventions, the torrent is so extreme one finds it difficult to keep up. On Monday, April 4 alone, President Biden announced a Trucking Action Plan, while Vice Presidnet Kamala Harris announced massive new federal intervention in local schools.
These two new national plans land atop prior interventions to carry out Biden’s “whole-of-government” agendas in “equity,” “climate crisis” and “competition policy.” These are being embedded throughout the federal government, military, and the contracting galaxy that enriches the Beltway, with government’s heft being deployed in purchases and procurement as a lever to force the policies on the rest of the country.
Unsexy “regulatory reform” is a low priority as usual, but it’s not entirely left out of the conservatives’ emerging agendas. Echoing his former boss, Mike Pence’s plan calls for the U.S. to “Eliminate at least two regulations for every new federal regulation.”
That’s a non-starter at midterm as opposed to presidential election season, but regardless, constitutional governance has deteriorated well beyond the point at which a reboot of Trump’s “one-in, two-out” streamlining can do much good. Moreover, policy isn’t something one simply switches on and off. The annihilation of Trump’s one-in, two-out, however, is only one of many instances in which Biden is undermining the ability of watchdogs to keep an eye on federal government mischief. The very concept of all-encompassing regulatory oversight has been eliminated by Biden.
The big unlearned lesson from the Trump era is that overarching regulatory regimes exist apart from any transitory executive. The administrative state is impervious to being undone by a president, but not impervious to being expanded unilaterally, as Obama showed with his pen and phone and as Biden is demonstrating in “whole-of-government.” The GOP as currently constituted is partly responsible and cannot be counted upon to unwind Biden’s excesses when he’s gone.
Given that the Biden has purged most of the history of Trump’s one-in, two-out program and its results, this article reproduces some of the lost detail for posterity. Later pieces will expand upon these lessons and showcase other lessons from the Trump era. A reform agenda will simultaneously need to reckon with the fact that many businesses lobby against substantial regulatory changes to maintain an edge over competitors and upstarts, and with the related fact that Biden is aggressively businesses to support progressive causes, laws, and regulations.
The hardened administrative state retreated little in the face of Trump’s lonesome deregulatory agenda. Along with one-in, two-out, that campaign incorporated regulatory reform task forces, portals for disclosure and discipline of sub-regulatory guidance documents, use of emergency “good cause” to streamline rules during the pandemic, and more.
There has long been a need for greater clarity on whether agency actions listed in the twice-yearly Unified Agenda, in which agencies present their regulatory priorities; in the Federal Register; and in the Office of Management and Budget’s annual Report to Congress on benefits and costs are regulatory or deregulatory. Pertinent to that, a key modification of the Regulatory Plan and Unified Agenda under Trump was the newfangled “Deregulatory” designation. For a brief four years, rules and regulations—whether significant or not—could be methodically identified in the Unified Agenda as either “Regulatory” or “Deregulatory.”
In particular, on the landing page of OMB’s database for each edition of the Agenda, a search option appeared for “Executive Order 13771 Designation.” Rules were further classified with respect to the order: “fully or partially exempt,” “not subject to,” “not significant,” “other,” and “independent agency.” The Trump administration each year boasted of achieving and beating its one-in, two-out goals for deregulation, although that was routinely disputed by opponents. In any event, the Table below shows the number of such rules at the Completed, Active, and Long-term stages relative to the overall count of 3,852 in Trump’s final Fall 2020 Unified Agenda, broken down into economically significant, major, and other significant categories.
Incorporating similar disclosures into the Federal Register and other publicly released reports could have provided a significant boost to regulatory accountability. Instead, Biden has removed these elements from the Agenda as part of his wider dispersion and elimination of publicly useful information.
Even under Trump, and indicative of resistance, the ratio of significant regulations in to regulations out declined over time. “One-in, 22-out” in 2017 became 12-to-one in 2018, and 4.3-to-1 in 2019. As my unofficial Fall Agenda roundup in the Table above shows, a total of 653 rules in the fall 2020 Unified Agenda pipeline were classified as “Deregulatory.” The fall 2020 Agenda count of 3,852 rules, with 653 being Deregulatory, yielded at the time a “net” count of 3,199 new rules. Meanwhile, 338 rules were classified as regulatory—compared with 324 in 2019 and 257 in 2018—for an overall gross ratio of 1.93-to-one in the fall 2020 pipeline as a whole (as opposed to the completed component that is the subject of Executive Order 13771). Agencies met Trump’s two-for-one goals in the fall Agenda—with a ratio of 3.74 to one, or 101 completed deregulatory measures divided by 27 significant regulatory ones. If we compare significant to significant, the ratio is 1.8 to one, still meeting the two-for-one goal with a bit of rounding up. (See Table 5 in the 2021 Edition of Ten Thousand Commandments for a breakdown of 2020’s 653 deregulatory measures by issuing department or agency, as well as stage of completion.)
With that brief summary, we get to the lessons for future reformers. While Trump was able to meet his own one-in, two-out goals on the terms he had set (rules did not necessarily have to be “significant” to offset the addition of a significant one), a deeper look indicated that agencies were planning more regulatory activity than rollbacks in future years, as a glance at Active and Long-term “economically significant” and “other significant” components in the Table above show. There were other agency workarounds, too, such as the ability to issue sub-significant rules and guidance documents to fly below the radar. Furthermore, Trump’s E.O. 13771 applied to “significant regulatory actions” of executive, but not independent, agencies, but the latter may be the most significant.
Next, again for the hoped-for benefit of future reformers, we look at some detail in the breakdowns of “Completed,” “Active,” and “Long-term” rules in Trump’s final Unified Agenda. (For prior breakdowns, see earlier editions of Ten Thousand Commandments.) Note that there is great overlap but not a complete parallel between these Agenda roundups and what the Trump administration would highlight in its “Two-for-One Status Report and Regulatory Cost Caps” and its “Regulatory Reform Results for Fiscal Year 20XX.” These reports have been purged from officialdom.
“Completed” Deregulatory and Regulatory Actions in Trump’s Fall 2020 Unified Agenda
The underlying goal of Trump’s two-for-one campaign was a regulatory cost freeze—for net regulatory costs of completed rules to be less than zero. As the Table above shows, of the 101 completed Deregulatory actions in the Fall 2020 Agenda, 14 fell under the economically significant category, while 35 are deemed other significant (for a total of 49 significant deregulatory rules). As for regulatory actions, 31 completed ones appeared in the fall Agenda, with 12 deemed economically significant and 15 “other significant.” Therefore, in the final months covered by the fall Agenda, a still-healthy 3.74-to-one ratio prevailed (the 101 deregulatory actions divided by the 27 significant regulatory ones in the Table).
Even looking at significant deregulatory items alone, a 1.8-to-one ratio maintained. That said, it is worth keeping in mind that allegedly nonsignificant regulatory actions could be added without offset. Furthermore, without a deep dive, we cannot know what costs “other,” “not subject to,” and “partially exempt” categories contain—and there were thousands of such rules. This was a red flag even under Trump, since most rules fall into these categories. These classifications, which needed greater scrutiny then, are now along with agency guidance documents unobserved and unsupervised.
Regarding the prospects of longer-term streamlining, it is worrying that economically significant deregulatory rules did not offset economically significant regulatory ones until pushed to completion. Discussed next, these tendencies need to be grappled with and remedied by future reformers future.
Significant “Active” Deregulatory and Regulatory Actions
Active actions—those in the Unified Agenda pipeline at the pre-rule, proposed, and final rule stages—can be thought of as the rules in the production process. A total of 496 Deregulatory “Active” actions well exceeded the 238 Regulatory ones. That represented a 2.1-to-one margin overall. As noncompleted actions, these rules were not obligated to meet the two-for-one requirement, but they might have been regarded as a leading indicator of future rulemaking enthusiasm.
In that respect, of more concern for future reformers are the costlier subsets of these Active rules. There were 51 economically significant regulatory actions in the works, as depicted in the Table above (compared with 39, 41, and 15 in the prior three years). But there were only 20 economically significant Deregulatory actions in play to offset them. Had remained in office, this factor put two-for-one on a path to being not just unmet, but inverted. In the “other significant” category, 141 regulatory actions are “offset” by 159 deregulatory ones, but not by a factor of two to one. The increasingly unfavorable ratios of significant active regulatory to deregulatory rules highlight the limits of unilateral executive regulatory liberalization.
“Long-Term” Regulatory Actions Greatly Outstripped Deregulatory Ones
The costlier “Long-term” significant rules inspired even less confidence in the prospects for executive branch streamlining even had Trump remained in office. With this category, agencies clearly demonstrated their intent to do more regulating than deregulating as soon as the opportunity presented itself. As the Table shows, 69 Long-term actions were deemed Regulatory with 56 are deemed Deregulatory.
Most noteworthy, though, was that, even after four years of Trump, only two economically significant long-term Deregulatory actions were listed as planned by agencies. By contrast, 13 planned economically significant were deemed Regulatory. Likewise, the “other significant” category contained 49 planned regulatory actions but only 16 deregulatory ones.
Such results at the end of the Trump era were warning signs for future would-be reformers because the more costly rule subsets are presumably where tomorrow’s cost savings would need to come from. The “Long-term” category in particular illustrates how regulatory liberalization will require congressional action, which has been absent, rather than unilateral presidential efforts. But like the debt and deficit, no bipartisan energy exists to address the expansion of government. Rolling back longstanding regulations requires going through the public notice-and-comment process. It takes time, which works to the advantage of agencies that are seeking to expand and maintain their authority.
The takeaway is that no permanent retreat in the administrative state occurred in the wake of Trump’s stand-alone deregulatory agenda. In Trump’s encore fall 2020 Agenda, Completed significant Deregulatory actions still exceeded Regulatory one,; but the active and long-term rules in the pipeline signaled all along the shift that was to materialize with Biden, embodied now in “whole-of-government” interventionism with which Repubicans are unprepared and unequipped to deal.
Politicians always say they’ll come to Washington to “get things done.” We need to get things undone.