Alongside tax reform, cutting red tape has been big news.
Congress created the regulatory enterprise and enabled the now-sweeping delegation of legislative power to administrative agencies and their unelected personnel.
Given the entrenchment, any fundamental regulatory or administrative state reform will require Congress to pass legislation to limit agencies and to retrieve its own rightful power. There is some, but limited, bipartisan interest at the moment in changing things.
Given that, there’s not a whole lot a president normally can do alone to remedy the situation in a permanent way.
Still, people have reason to be impressed with President Trump’s achievements on stemming the the flow of red tape, as documented in the administration’s new status report concerning Trump’s “one-in, two out” program — as well as implied in year-end scope of the Federal Register and in the number of rules agencies produced relative to Obama, and relative to laws Congress passed.
Obama used an aggressive “pen and phone” to grow government. Trump also used the pen and phone, but within the rule of law, to expand freedoms by restoring a separation of powers in rulemaking. Trump thinks there are things executive branch regulatory agencies (even his regulatory agencies) ought not do. At least in this capacity, what president has (potentially) relinquished power in such fashion in recent memory?
That aside, Trump’s other regulatory rollbacks, while necessarily limited, have consisted of six main elements carried out by executive order and internal executive branch directives.
First, 14 Obama rules that had been finalized were eliminated via the Congressional Review Act, in individual bills signed by Trump.
Second, over 1,500 Obama rules in the pipeline but not finalized were withdrawn or delayed.
Third, a friendlier attitude toward streamlining permitting for bridge, pipeline, transportation, telecommunications and other infrastructure is apparent and being interpreted as a more open season for certain infrastructure planning.
Fourth, Trump agencies have abstained from issuing significant new rules in large part.
And fifth, to the extent possible within congressional requirements that rules be issued, Trump required executive (not independent) agencies to eliminate at least two rules for every one issued. So far, the administration claims a 22-1 ratio instead, having dispensed with 67 rules while adding only three “significant” ones.
This rollback job will become harder in 2018 as low-hanging, quick-to-rid regulations are exhausted. “Fatter” rules like the Clean Power Plan” and the Waters of the United States rule for example are already in the administration’s sights and being reformed, but will require lengthy formal notice-and-comment procedures, and face legal challenges. Such big ones couldn’t be fully dealt with by year-end 2017.
Sixth, Trump has done more than any president apart from the second George Bush to address “guidance documents” and other agency alleged sub-regulatory decrees that nonetheless can have real regulatory effect. Trump’s executive orders and directives encompass not just rules, but such guidance also. There is more that needs doing here in 2018 and 2019.
One might say developments outside the scope of 2-for-1, such as the Federal Communications Commission’s rollback of the net neutrality rule (it’s an independent agency not subject to the 2-for-1 order), and Trump’s signals regarding relaxation of permitting in transportation, bridges, pipelines and 5G telecom infrastruture –wielded even more impact. Note the Commerce Department’s Permit Streamlining Action Plan, for example.
Congress ultimately will need to act as the 2-for-1 campaign begins to bump up against, natural, even constitutional limits. To date, there is little inclination on the part of Democrats to collaborate with him. Perhaps as a bestselling negotiator, Trump may be able to come up with ways to share credit with Democrats for reforms — like even Trump’s own in/out program — that in fact have bipartisan, not solely Republican, pedigree. Small business relief and pressure from governors are sometimes the impetus to get things moving.
Originally published at Forbes.