The general story the numbers tell is that the Trump administration has been steadily increasing its pace of regulatory activity. It has enacted some positive reforms through Executive Order, such as its one in, two out rule, and two orders to make regulatory dark matter more transparent. Dark matter is regulation that has the force of law, but never went through the proper public notice-and-comment rulemaking process. The administration missed an opportunity to codify these reforms in proper legislation when Republicans held both chambers of Congress, so these reforms are vulnerable to reversal when the White House eventually changes hands. In the long run, this may end up as the Trump administration’s biggest missed opportunity.
Deregulatory efforts will likely continue in 2020, but will likely to be more than offset by regulatory increases elsewhere. Trade barriers have more than doubled since 2017. While the USMCA trade agreement will keep tariffs against Canada and Mexico in check, it contains substantial new regulatory burdens and non-tariff trade barriers. Upcoming agreements with China, the United Kingdom, and the European Union, if these happen, due to USMCA’s precedent, they will also likely contain substantial new regulatory burdens.
The emerging antitrust alliance between national conservatives on the right and progressives on the left may also result in major new regulatory barriers against competition that will not necessarily show up in rule counts or Federal Register page counts.
With that for context, here are some early data on new regulation in 2019:
There were 2,106 proposed regulations in 2019. This is very close to 2018’s 2,072 proposed regulations, and a nearly 15 percent increase from the Trump administration’s first year figure, 1,837 proposed regulations in 2017.
2,964 final regulations. This is down from 2018’s 3,367 final regulations and 2017’s 3,280 final regulations. This makes 9,405 new final regulations during the Trump administration from its January 20, 2017 through year-end 2019. At that pace, it will likely pass the 10,000 mark in February or March 2020.
21,804 agency notices. This is where a lot of regulatory dark matter appears—rules which have the force of law, but were never put through the proper rulemaking process, which includes a public notice-and-comment period. 2019 was down slightly from 2018’s 22,025 notices and 2017’s 22,137 notices. From inauguration through year-end 2019, the Trump administration issued 64,485 agency notices.
72,561 Federal Register pages. This is the highest figure of the Trump era, and a sharp increase over the Trump administration’s first two years. Using adjusted page counts, the 2018 Federal Register was 64,582 pages, and 2017’s was 61,950 pages. Significantly, 2019’s page-count increase happened despite near-zero activity during the month of January, when the federal government was partially shut down. It is likely that at least some pages that would have appeared in January instead appeared during later months, resulting in little total change. But it is also possible items were simply never published—which likely represents decreased transparency rather than decreased activity. We will likely never know the exact balance.
Interesting, and busy, times are ahead.