President elect Donald Trump, in a new video covering the transition and policy for the first 100 days, promises to get rid of regulation on the books, which isn’t easy to do.
Trump has instructed his transition team to “develop a list of executive actions we can take on day one to restore our laws and bring back our jobs.”
On regulation in particular, the president-elect said, “I will formulate a rule which says that for every one new regulation, two old regulations must be eliminated.”
“So important,” he emphasized.
We’re known in theory and are discovering in practice that President Barack Obama’s controversial executive actions, which depended entirely on a Hillary Clinton victory, are vulnerable to Trump’s newer version of the pen and phone.
The same will be true for Mr. Trump’s executive actions; to work, executive actions need to be paired with legislative strategies. Both barrels are required.
Still, a lot can happen by executive action, such as the major declines in rule counts under President Reagan. But any executive actions limiting the federal government require shoring up with congressional statute. That’s also “So important.”
While the certainty of an Obama veto loomed, the 114th Congress (the Senate, not so much) passed substantial regulatory reform measures, notably the Regulatory Accountability Act. The RAA would have beefed up the 1946 Administrative Procedure Act governing public notice-and-comment for federal regulations, and boosted regulatory oversight.
Also passed was the REINS Act (which stands for “Regulations from the Executive In Need of Scrutiny”), to require Congress to approve, to expressly affirm, substantial agency regulations.
These two bills, and others, address the wholesale delegation of legislative power by Congress to unelected agencies. REINS remains the leading measure, in principle, restoring separation of powers and Article I congressional authority.
We have a two-decade-old, unworkable mirror-image of REINS in place now, called the Congressional Review Act (CRA). With it, Congress can theoretically issue a resolution of disapproval of an agency regulation (and agency guidance and memoranda too, which is forgotten).
Sitting presidents tend to veto disapproval resolutions of their own executive agencies’ rules (and independent agency rules, for that matter), and only a Clinton repetitive-motion-injury rule was ever nixed. Disapproval of rules like the Federal Communications Commission’s net neutrality rule failed in the 114th Congress.
The atmosphere feels different now. Last week, the House passed an important measure to allow the bundling of CRA disapproval resolutions for rules rushed out the door by an exiting president (you-know-who).
Called the Midnight Rule Relief Act, count on the effort featuring prominently in the incoming Trump administration, likely as part of a First 100 Minutes Agenda, let alone 100 Days. Rules subject to the disapproval resolutions are those issued within the prior 60 legislative days (which actually goes back around six months). I gather over 140 such rules here: “Significant” Federal Rules Since May 2016: Containing Potential Candidates for Trump Administration Congressional Review Act Resolutions of Disapproval.)
On the one-in, two-out executive initiative stressed by Mr. Trump, he should work with Sen. Dan Sullivan’s (R-Alaska), whose RED Tape Act (S. 1944) already puts the “one-for-one” idea into needed legislative language, and includes agency guidance and memoranda besides. Agencies are known to use the latter to affect private behavior and regulate without actually issuing a regulation, a problem highlighted most by Sens. James Lankford (R-OK) and Heidi Heitkamp (D-ND).
Incidentally the “RED” stands for “Regulations Endanger Democracy.”
The RED Tape Act, and Mr. Trump’s call for the same principle, resembles measures that have had some success in Canada, where for every rule imposed, one had to go. Great Britain has worked with the one in, two out approach favored by Mr. Trump.
Rules have compounded for decades with very little rollback ever taking place, so it is reasonable request that any time an agency issues a regulation, it should remove a similar magnitude regulatory burden (or, better, two) somewhere else.
Mr Trump’s team should be aware of this favorable NPR portrayal of Canada’s experimentation with one-in, one-out.
The risk of executive action and even legislation like this is that it ends up working only on the periphery, taking the existing regulatory state for granted. It’ll get rid of things like excess OSHA paperwork or Obamacare forms, but not fundamentally challenge the premises of inappropriately regulating human innovations like communications, autonomous cars and aircraft, robotics and other frontier sectors. It will tend to give a pass to categories of regulation like privacy and antitrust regulation since they are concepts, not particular rules.
That’s a problem; a regulatory liberalization agenda must go deeper, and (1) eliminate agencies (such as at Interior, Energy and EPA) (2) prevent remaining agencies from issuing any new rules in any frontier areas where Congress hasn’t explicitly delegated authority (Internet, net neutrality, drones, robotics, AI) without Congress legislating first, and (3) enact something akin to REINS for agencies’ final product. Only these steps can restore balance of power.
But in the meantime, the good news is, applied strictly, “one in one out” amounts to a freeze on overall regulatory burdens. A status-quo regulatory budget of sorts. In Sen. Sullivan’s version, “a federal agency will be required to remove a regulation from the Federal Register for every new one promulgated,” and publicize the repeal alongside the appearance of the new rule.
And then there’s an interesting Sullivan twist: “If they refuse to do so, the cost of living adjustment for agency personnel will be withheld until the agency abides by the law.” That points to another executive/legislative synergy with Sen. Sullivan. Mr. Trump also has been known to have thoughts on the federal workforce.
Originally posted at Forbes.com.