Once the election dust settles, Congress will wrangle over another COVID-19 spending bill, but regulation will ultimately have greater impact on the recovery. Agencies have been waiving limitations on telemedicine, restrictions against remote work and education, and other harmful rules. Yet, nobody knows how many total rules they have waived or how much impact they are having. This is a longstanding problem.
Agencies need to start following their own rules, especially at a time like this. Congress and the President should enforce existing agency transparency requirements, such as the required notice-and-comment process for new rules, and stop agencies from dodging required cost-benefit analysis. Improved disclosure is also needed.
The 185,000-page Code of Federal Regulations has roughly 1.1 million regulations. According to the White House, federal agencies have taken 600 administrative actions in response to COVID-19. Many of those were already in progress before the pandemic. Many others never went through the formal rulemaking process and are difficult to track. Such reforms can be undone at any time, and the public might never find out.
A Brookings Institution report in late August estimates 85 administrative actions, rather than 600. But it only includes final rules published in the Federal Register that cited “both the COVID-19 crisis and the legal exception for finalizing a rule without considering public comments.”
One of us, Reinauer, puts the number at fewer than 60 waived rules. Even among those, many did not go through proper channels.
The Trump administration has shown commitment to regulatory reform. Even before COVID, Trump issued Executive Orders to cap new regulatory costs at zero, to require agencies to scrap two old rules for each new one they adopt, and to address the proliferation of guidance documents, which don’t go through the rulemaking process but carry regulatory authority.
For example, the Transportation Security Administration exempted hand sanitizer from its rule prohibiting liquid containers larger than 3.4 ounces; passengers may now carry one 12-ounce container of liquid hand sanitizer. But this exemption was never published in the Federal Register. Of course, it is also unclear if the original rule was ever published there, as legally required. The waiver is certainly welcome, but it raises questions as to whether agencies are following their own rules in the first place.
Many deregulatory measures are not found in the Federal Register at all. Americans for Tax Reform found several executive actions that likely don’t require the notice-and-comment process, such as moving the tax filing deadline to July. Such actions are difficult to track and measure.
Transparency is important, especially during a crisis. Agencies need to do more than look like they are “doing something” in response to COVID. Congress and the president need to ensure agencies follow existing transparency requirements. Additional safeguards such as annual agency regulatory report cards will keep agencies more honest during this and future crises. Then policy makers and the public can judge for themselves what agencies are faring, and how they can do it better. It’s a lot more cost effective than another $1 trillion “stimulus.”