In a new Executive Order on Regulatory Relief to Support Economic Recovery, President Trump says “The virus has attacked our Nation’s economy as well as its health.”
It was the state lockdowns that directly did that, of course. “Many businesses and non-profits have been forced to close or lay off workers,” Trump continued, “and in the last 8 weeks, the Nation has seen more than 36 million new unemployment insurance claims.”
Since the crisis began, many federal, state and local regulations argued to have stood in the way of health crisis response have been relaxed.
What the new order more explicitly acknowledges is that the same approach can be taken with the immediate economic crisis—and then some.
Calling the “innovation, initiative, and drive of the American people” the “greatest engine of economic prosperity the world has ever known,” Trump instructs agencies to:
“address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery. … They should also give businesses, especially small businesses, the confidence they need to re-open by providing guidance on what the law requires; by recognizing the efforts of businesses to comply with often-complex regulations in complicated and swiftly changing circumstances; and by committing to fairness in administrative enforcement and adjudication.”
Some agencies had already taken such temporary actions prior to the public health emergency under the auspices of far earlier Trump executive actions (like one-in, two-out). Agencies are now more aggressively directed to “determine which [rescisions, suspensions, modifications or waivers], if any, would promote economic recovery if made permanent.”
President Trump does have emergency powers that, while the “authority” might not be “total,” are nonetheless considerable. The new order expands upon that by directing agency heads to assume “to the fullest extent possible” the same emergency authorities Trump himself has invoked in recent weeks, as well as those prior authorities “otherwise available” to “support the economic response” to today’s crisis.
Those prior authorities agencies have relied upon include provisions like the “good cause” exemption of the Administrative Procedure Act, which allows agencies to partly leapfrog public notice and comment provisions and issue so-called interim final rules instead of proposed rules. This has been problematic in terms of bypassing formal rulemaking and Congress’s duty to make law in particular, and it can be again.
It needs to be clarified though, that, while emergency powers are invoked in the Executive Order on Regulatory Relief to Support Economic Recovery, the phrase “consistent with applicable law” appears five times.
The use of aggressive executive power, however justified, does set up tensions for later. Just as Trump is doing now, progressives will exploit IFRs to address their future contrived crises such as climate, or what they call food and housing insecurity.
The difference here is that while good cause and other exemptions have been exploited to expand government and its power, Trump is now uniquely using the same provisions to shrink it.
The order also encourages agency heads “to promote economic recovery through non-regulatory actions.” That too is a good thing, but can set up clashes with Trump’s important earlier efforts such as Executive Order 13,891 on “Promoting the Rule of Law Through Improved Agency Guidance Documents” to restrain abuse of said documents (or the stuff I like to call regulatory dark matter). That state of affairs isn’t the fault of Trump, though; the problem lies in the replacement of constitutional lawmaking with an administrative state.
Among the public protections, agencies are to “consider exercising appropriate temporary enforcement discretion or appropriate temporary extensions of time as provided for in enforceable agreements with respect to those requirements.” Also in service of economic boost is a 10-point section now being referred to (but not within the text of the order itself) as a “Regulatory Bill of Rights.”
These protections appear to be offered in the same spirit as the pursuit of liability protections for reopening businesses by some in Congress. That is, moves like the bill of rights could be seen as preemptive with respect to the missteps and misunderstandings inevitable in complying with future health-related and economic re-opening guidance. Interpretations of complicated reopening directives are likely to be as varied and conflicting as state approaches to economic re-entry.
In their dealings with individuals, agencies in this strained environment are to be fair, transparent and prompt, and operate without “improper coercion” and “unfair surprise.” These reasonable notions reinforce provisions laid out late last year in Executive Order 13,892 on “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.”
Agencies are further encouraged to “decline enforcement against persons and entities that have attempted in reasonable good faith to comply with applicable statutory and regulatory standards” as well as to publicize intent with respect to enforcement discretion. Violations of law will require proof by the agency, not proof of compliance by the public (again, in accordance with existing applicable law).
This new executive order establishes a needed basis for further action by the administration this year in service of economic recovery.
Ideally, Congress should work with the administration to streamline and make permanent regulatory reductions, such as via a regulatory reduction commission. However, progressives’ relationship to the policies of economic lockdown, such as their attempt to use the crisis to advance the unrelated universal basic income agenda, are different from those pulling the economic wagon. Since progressives benefit from government spending and government growth, and demand yet more of these, they are unlikely prospects for working with Trump on measures consonant with the new executive order.
Therefore the Executive Order on Regulatory Relief to Support Economic Recovery should be the first of Trump’s aggressive unilateral actions. Here’s a list of over a dozen unilateral options the president has, a slate that includes regulatory freezes, sunsetting, and most aggressively, insistence upon congressional approval of rules). Even the new order will require pressure on agency heads, and additional steps like these will take even more.
Acting unilaterally, albeit “consistent with applicable law,” can not only speed recovery from the economic crisis but better cement the Trump deregulatory “legacy” as a bonus.