New presidents emphasize 100-day priorities, but president-elect Donald J. Trump likely has a 100-minute agenda. An early post-election action instructed transition managers to “develop a list of executive actions we can take on day one to restore our laws and bring back our jobs.”
In today’s Administrative State, unelected, purported experts govern decisions over everything from breath mint serving sizes to health care, energy and the Internet. And they pressed the accelerator during Barack Obama’s final months.
So count on Trump freezing Obama rules and regulations at the outset via executive action.
But, will the federal government be larger or smaller after four years of Trump?
A generation has passed since Congress last proposed serious downsizing of the federal bureaucracy, and Congress cannot be counted upon to roll things back. As evidence, the 1990’s Republican “Contract With America” calls to eliminate the Departments of Energy, Education and Commerce are nowhere to be found today, even with Trump moving in. Rick Perry will head one of the departments he and other Republicans were to dismantle.
So if Trump is to make headway in downsizing Washington, and cutting regulation in particular, it is not enough to analyze federal rules better and to cut a few. A pruned weed is a healthy weed, as CEI’s Fred L. Smith Jr. likes to say.
Rather, statutes should be revisited, and agencies scaled back and eliminated.
On a transitional basis, executive actions like those Trump will begin announcing Friday can, potentially, increase regulatory scrutiny and reduce overregulation. Where Obama deployed a pen and phone, one can envision a Trump Meataxe .
Trump has the advantage that the regulatory freeze he proposed and executive oversight itself are common and bipartisan, thus unobjectionable.
But over decades, Congress yielded lawmaking power to agencies, such that the unelected do the bulk of it now. House leadership newly, and finally, acknowledged the gravity of the situation last year (in a series of “Better Way” reports), and promised restoration of the balance of power. Trump will fail if he trims, say, excess OSHA paperwork or Obamacare forms, but does not challenge and uproot the core premises of the unelected administrative state governing human innovations in energy, communications, health, autonomous cars and aircraft, robotics and other frontier sectors.
The First 100 Minutes: Trump’s Executive Actions
The modern administrative regulatory state has nothing to fear from the existing watchdog apparatus, the White House Office of Management and Budget’s Office of Information and Regulatory Affairs, which misses deadlines and reviews only a fraction of agency rules. That could partly change if Trump makes the most of his promised regulatory moratorium, strengthens executive orders requiring restraint, and toughens review and analysis of regulations.
Issue strong regulatory oversight executive orders: President Reagan’s Executive Order 12291 required agencies to justify rules and initiated central OMB review. It also allowed the Office of Management and Budget Director to declare agencies’ rules “major,” triggering more review. Rule counts and Federal Register pages alike dropped more than one-third under Reagan. A later (Clinton) order “reaffirmed primacy” of agencies, weakening review.
Trump could boost “audits” and improve cost analysis dramatically via executive order, and work with Congress to bring now-exempt independent agencies into the fold. In recent years, reporting and disclosure via the regulatory Unified Agenda, the White House regulatory cost-benefit Reports to Congress, and the Information Collection Budget have deteriorated but can be strengthened with “report cards” quantifying costs of new and planned rules and retroactively reviewing them. A Trump replacement of the Office of Information and Regulatory Affairs with an “Office of No” means forbearance and not reflexively accepting the premise of agency expertise.
Expand executive restrictions over agency guidance documents, memoranda and other “regulatory dark matter”: There are a few dozen laws and over 3,000 regulations, but thousands more agency guidances, notices, memoranda and proclamations scattered under numerous monikers and across various websites, if publicized at all.
A George W. Bush era directive from now-Sen. Rob Portman (R-Ohio) subjected the “economically significant” subset of agency guidance to review. That process still partly endures but badly needs a Trump boost in the first 100 Minutes. Guidance needs to be held to public accountability standards more akin to rules. Trump could insist upon intense OMB review and applying the Administrative Procedure Act’s notice-and-comment requirement to regulatory dark matter, as well as requiring streamlined, online disclosure to augment what a few executive agencies voluntarily publish based upon the Portman memorandum (see my compilation here). Trump could also urge incorporation of independent agency guidance.
Also, the Congressional Review Act’s 60-day resolution of disapproval process applies to guidance, not just formal rules. Trump can signal his intent to look favorably upon such resolutions. The CRA could also play a major role in the coming weeks in eliminating recent Obama rules that pushed too far.
Reject agencies’ new regulations, particularly where Congress hasn’t expressly enabled new authority: An executive must carry out the laws of Congress. Of course, Obama elected not to enforce certain immigration and marijuana laws, with no consequence, despite the apparent breach of the separation of powers. On the other hand, the proclamations of unelected agencies, particularly when they neglect regulatory housecleaning or conforming to the limited protections of the Administrative Procedure Act, are different. Trump should adopt the stance of 2012 Republican presidential candidate Mitt Romney, who declared support for a law that would:
“[R]equire all “major” rules (i.e., those with an economic impact greater than $100 million) to be approved by both houses of Congress before taking effect. If Congress declines to enact such a law, a President Romney will issue an executive order instructing all agencies that they must invite Congress to vote up or down on their major regulations and forbidding them from putting those regulations into effect without congressional approval. [Emphasis added]”
The First 100 Days: The “Working with Congress” Agenda
We’re known in theory and Trump will certify in practice that President Barack Obama’s controversial executive actions are vulnerable. One day, that same vulnerability will apply to Mr. Trump’s executive actions; they can be overturned by a future president.
Permanence of the Trump agenda requires executive actions paired with legislative strategies. Both barrels are needed to elevate the principle of congressional authority over modern lawlessness, and to confine the federal government to appropriate boundaries.
A legislative liberalization agenda may begin with a Trump embrace of some of the the 115th Congress’ expected Congressional Review Act revocations of recently finalized Obama regulations. These are important, but the Congressional Review Act is not transformative; overregulation didn’t begin in 2016 .
Mr. Trump should go much further and insist upon congressional affirmation of rules, guidance and other agency proclamations likely to have significant economic impact, or otherwise register as controversial. He should signal support of the regulatory reform bills the House passed last week (the REINS Act, the Regulatory Accountability Act, and the Midnight Rules Relief Act), and urge their passage in the Senate. The Regulatory Accountability Act in particular holds potential for bipartisan compromise.
All this said, actually getting Washington out of our lives requires even more. Mr. Trump should spearhead an agenda to:
“(1) Repeal or amend enabling statutes that sustain the regulatory enterprise’s excesses in the first place (such as at Interior, Energy and EPA).
(2) Abolish, downsize, cut the budgets of, and deny appropriations to aggressive agencies, sub-agencies, and programs that routinely pursue regulatory actions not authorized by Congress.
(3) Eliminate and sunset rules, and, most importantly, prevent agencies from creating new rules in areas where Congress hasn’t explicitly authorized and distinctly voted to delegate legislative authority (particularly frontier areas sectors like Internet, net neutrality, drones, robotics, AI, and the like). Short of agency elimination, Trump should insist upon such a “full-stop” approach, since nothing else apart from Article I restoration — or Article V reaction by the states, should it come to that — addresses the problem not just of agency overreach but of Congress having delegated to such an extent that agencies think they are unbounded.”
The 114th Congress passed numerous regulatory reform bills, and Speaker Paul Ryan issued an expansive 2016 set of congressional task force reports touting reform and a broader Article 1 restoration agenda. The House has already acted on several bills in the 115th. With vice-president elect Mike Pence’s bridge to House leadership and Trump’s willingness to visit and enlist Senate Democrats, we may yet be surprised.
Important is the bipartisan pedigree of some reforms. A bipartisan interest in a “regulatory reduction commission”exists. The “one-in, two-out” proposal exists in legislative form in Alaska Sen. Dan Sullivan’s RED Tape Act (plus, Sullivan’s bill encompasses agency guidance besides, something all regulatory reform bills should now include). There was a distinctive statement of principles on “regulatory budgeting” in the 2017 House budget resolution, marrying concerns over the regulatory enterprise with federal spending. Regulations have macroeconomic effects that dynamic scoring can take into account if pressures to revisit the Budget Act persist. Indeed, if an economic surge brings higher interest on the $19 trillion federal debt to levels that challenge serviceability, bipartisan regulatory liberalization becomes more urgent.
The solution for executive overreach under Obama was for Congress to have said no to it, or to have defunded it. The question now becomes what Trump and Congress do together to downsize Washington. The modern administrative regulatory state approach does not work, and it is increasingly abusive and unaccountable. The founders offered more than one way to protect their legacy, and failure under Trump and the 115th Congress could shift the reform agenda to Article V and conventions of the states to restore balances of power. It need not come to that.
Originally posted to Forbes.com.