Many observers are weighing in on the rules and regulations that a new Trump administration might be inclined to eliminate.
The Hill, for example, compiled a solid list of “14 Obama Regs Trump Could Undo” that are surely being reviewed by transition operatives.
Here we’ll address the process for eliminating certain pending rules—but with the caveat that there needs to be a much broader, philosophically complete and aggressive regulatory liberalization agenda (see recent Forbes, “How President-Elect Donald Trump Can Fast-Track Deregulation And Wealth Creation“.)
Some emphasize “midnight rules” that the Obama Administration hopes to rush through before his term ends in January. It is certainly the case that the agencies are highly active now. The 2016 Federal Register stands at a record-breaking 79,990 pages this morning, and will likely pass its all-time high before Thanksgiving Day.
But in an era in which guidance and memoranda and the like can take place of “ordinary” regulation, reformers must beware of sleight of hand that obsures other burdens.
For present purposes, there are a couple categories of rules potentially subject to elimination by the Trump administration. The first consists of already finalized (and often legally challenged) rules, like the Environmental Protection Agency’s Clean Power Plan and the Waters of the United States rule; the Department of Labor’s “overtime rule” and its “fiduciary rule.” Then there is the big one, Obamacare. These are long-discussed items like those in The Hill article noted earlier.
The other main category is proposed rules on the cusp of being enacted, or those just-enacted but subject to a 60-legislative-day (somewhat like dog-years) hold that will carry them into the next administration. For the latter, the Trump administration can eliminate them by collaborating with Congress on so-called “resolutions of disapproval” as provided for in the Congressional Review Act.
Depending on days the lame duck Congress operates, we count back the 60 days to sometime early summer or late spring. Thousands of rules have been issued since that time, but those deemed “significant” by agencies may be most pertinent (however, agencies may not admit when some rules are actually significant/costly).
For present purposes, using a rough (it will change) cutoff of May 31, there have been 140 “significant” rules issued since June 1 (more appear each week).
I’ve compiled a chart of them here:
This is the raw count; many listed rules deal with interagency issues and operation of governmental programs and will not be of immediate interest to reformers. But they do matter for longer term reform and privatization of governmental programs. But big ones like the drone rule, updates on ozone standards, vehicle fuel economy standards, and various energy efficiency mandates may be found here.
Departments and agencies are all maintained in the list for ease of locating items, but readers can easily de-dupe between departments/agencies (such as HHS/FDA, DOT/FAA, DHS/Coast Guard. Note also that there are certain multi-agency rules (for example FRS, FDIC, et. al. on margin/capital requirements for certain trading entities).
Keep in mind that rules not deemed “significant” by agencies may in fact be significant to regulated parties and should not be overlooked. Those are not listed here. Also significant guidance/memoranda (these and other “regulatory dark matter”) can substitute for rules.
So this list can best be regarded as a starting point, capturing the current snapshop of what agencies willingly call their highest impact rules, and that happen to sit within the Congressional Review Act window. Still one must go deeper.
We cannot stress strongly enough that listed CRA options are transitory if the idea is to issue resolutions of disapproval. Post-CRA-deadline and CRA-ineligible rules (like many contentious EPA and DoL ones) will require separate approaches if they are to be scaled back, including:
- Trump administration enforcement determinations and prioritizations/de-prioritizations (but within the rule of law); Think of it as a potential “Trump Meataxe” as distinct from Obama’s famous “pen and phone.”
- A formal notice and comment action
; Congressional repeal of the rule (and preferably statutory repeal and agency eliminations; recall the appeal to think broader than a transitional splash involving current rules); De-funding via the 2018 fiscal budgeting and appropriations processes.
Obama never wanted to allow himself to be limited by Congress in this way, and promised a veto of the so-called REINS Act (“Regulations from the Executive In Need of Scrutiny”). What will Trump do? Will he help rein in the executive overreach so prevalent these past eight years? He won’t be our last president.
That’s a big part of draining the swamp.
Originally posted to Forbes.com.