How Trump Has Taken the Republican War on Government to the Next Level
Though it hasn't made many headlines, the GOP attack on regulations is the most consequential feature of Trump's early presidency.
The early days of Donald Trump's presidency have been mired in go-nowhere battles, apparent failures, and pronouncements that are more flash than substance. In the past week alone, the Trump-supported House healthcare plan has been attacked by other Republicans, Trump's proposed budget was widely criticized for its aggressive cuts, and a judge placed a temporary restraining order on the administration's revised travel ban. Even most of Trump's other big-deal executive orders often seem to be more bark than bite, PR-friendly maneuvers to demonstrate to Trump's base he's working hard. Yet he and his GOP-controlled Congress have made significant progress on one key joint priority: an unprecedented crusade against regulations.
Trump has long made it clear that, while he supposedly likes some core (but unnamed) labor, environmental, public health, and safety regulations, he believes up to 75 percent of the country's current regulatory framework is redundant, outdated, or inefficient. (None of the experts I've spoken to have any idea where he got that figure.) The notion of a bloated, inefficient government has been GOP gospel for decades and is independent of Trump—most Republicans in Congress have long voiced support for exactly the kind hacksaw approach to regulations Trump advocates.
"Some of that accords with their small government ideals," Center for Progressive Reform regulatory wonk James Goodwin told me. "Some of it stems from the fact that regulations were associated with the Obama administration, so attacking [them in blanket fashion] had that convenient political dynamic to it" as well.
Over the past few weeks, congressional Republicans have delivered on deregulatory promises by using the Congressional Review Act (CRA), a esoteric legislative tool that allows them to nullify late Obama-era rules with simple majority votes. It's only been utilized once before, in 2001, to block a Clinton rule on ergonomics. Yet in the first weeks of the Trump era Congress has utilized the CRA eight times (although Trump has only gotten around to signing three of these measures into law), killing regulations on business disclosure, school accountability, and environmental safety, to name a few.
The CRA can only be used early in an administration, but the experts I've spoken to believe it could be flexed a few more times on major rules.
Congressional Republicans have hinted at further efforts to use the budget process to limit funding for regulatory enforcement and to defuse existing regulations. Bills have been advanced that would expedite the future use of the CRA, intensify the review of existing regulations, and give Congress more control over the development of major regulations, potentially slowing the rulemaking process indefinitely.
Trump is doing what he can to attack regulations from the White House. On the day of his inauguration, he froze progress on all developing regulations for at least 60 days for review. At the end of January, he issued an executive order requiring most proposed regulations (with some exceptions) to come with recommendations of two older regulations to be potentially eliminated and put an annual spending cap on new regulations, set at $0 for 2017. A month later, he created new officers and task forces within federal agencies to enforce deregulation policies—regulating the deregulation process, basically. In between, he ordered the delay, non-enforcement, or review of a number of regulations in five separate executive actions.
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Trump's team has also staffed key agencies with individuals hostile to their missions, a way to weaken the impact of regulations through minimal enforcement without actually formally getting rid of them and limit new rulemaking. Amit Narang, a regulatory expert at Public Citizen, an advocacy group involved in a lawsuit against Trump's one-in-two-out executive order, suspects Trump will neglect to defend embattled regulations in court as well, spurring along their potential judicial death.
Few of these measures are unique. Every president since Reagan has frozen regulations after taking office, and every president since Carter has ordered some review of existing regulations to identify redundant, outdated, or inefficient rules. George W. Bush was particularly adept at staffing agencies with regulatory heel draggers, Goodwin told me. Joshua Huder, a legislative affairs expert at Georgetown University, noted that Congress has attempted to choke regulation enforcement by limiting funding before.
The Trump administration's only truly new tactic may be his cap on regulatory spending, which has grown every year since 1982. Susan Dudley, director of George Washington University's Regulatory Studies Center, calls it "probably the most dramatic action since the requirement for regulatory oversight and benefit-cost analysis established in 1981." Yet even this measure has its roots in proposals going back to the Carter era and initiatives to offset regulatory costs in other nations.
But the vigor with which Trump and the current Congress are pursuing these tactics and the rhetoric they've employed are wholly unprecedented, the experts I spoke with agreed. In the past, Narang stressed, Republicans acknowledged that there was such a thing as good regulation—it just had to be smart. Now, he said, "It's just a complete rejection of regulation across the board."
That could be chalked up to Trump's focus on cost with little to no thought for benefit, also evident in his budget, which eliminated entire programs and agencies wholesale, even popular ones like AmeriCorps. It may be difficult for public opinion to push back on this, as Narang noted that the current regime is great at a rhetoric of appealing abstractions rather than talking in concrete terms, making it hard for casual observers to recognize what citizens could lose.
"We've never seen anything like [this]. And I lived through Reagan," said University of Maryland regulatory expert Rena Steinzor. "On the other hand, much of the threats are flash, not fire."
To wit, as with most of his executive orders, Trump's most significant directives on regulation are so stunningly imprecise they may be next to impossible to enforce. Notably, "regulation" is ill-defined in the one-in-two-out order, as are potential exemptions and the methods by which costs will be measured. Meanwhile, Congress is so dysfunctional—especially on the budget processes—that Huder doubts it'll be able to follow through on timely funding restrictions or get major regulatory reform bills past a likely filibuster from Senate Democrats.
Ike Brannon, a regulatory expert at the libertarian Cato Institute with experience in the rulemaking machine, believes many regulations have been crafted and reviewed under less than fully stringent cost-benefit analyses, so Trump's people may find some fat to trim. But Narang thinks it's telling that Trump rarely, if ever, cites specific rules for potential elimination.
Without the CRA, removing any regulations eventually slated for cutting involves going through the full regulatory review process again, dealing with public comments and likely the courts, which can take years. Either that, or they have to go through Congress, where repeals or alterations could risk idiosyncratic opposition or filibusters. Navigating this, says Brookings Institution regulatory expert Philip Wallach, "will take leadership and skill in dealing with existing bureaucracies… we have yet to see which of Trump's appointees possesses those traits."
Given all of those obstacles, it's unlikely that Trump will really succeed in wiping out the 75 percent of government rules he says are unnecessary. Still, even if they can't actualize their grandest plans, Trump and his congressional allies could have a major impact on America's regulatory framework overall. The CRA doesn't just axe a few rules; it blocks the creation of any similar rules in the future without Congress's approval, freezing whole lines of rulemaking indefinitely. And experts tell me Trump's regulatory budget and two-out-one-in order will tie up resources on hypothetical deregulations and may have a chilling effect on the nature of new regulations. Delay and review tactics, Dudley says, may have already initiated a substantial slowdown in rulemaking.
"We could be in a regulatory dead zone, to a certain degree, for the next four years," added Narang.
But as the Republican base celebrates attacks on the EPA and other unpopular regulatory agencies, the risk is that fewer regulations will mean more, well, risks: of pollution filling rivers and the air, of worker abuses, even of a new financial crisis. If and when those consequences occur, they won't hurt people like Trump or the billionaires in his cabinet. As Tom McGarity, an administrative law professor at the University of Texas at Austin, told me, "Those regulations that protect vulnerable and not very powerful populations will be the easiest ones to cut."