Why Trump's Quiet Crusade Against Regulations Matters
The one thing he's good at is keeping the federal government from doing things.
Left photo by NICHOLAS KAMM/AFP/Getty; right photo by Alfred T Palmer via the Library of Congress
Every year, federal agencies agencies issue thousands of rules and regulations governing mundane things that almost no one notices, but which matter a great deal. They run the gamut from guidelines on how to kill chickens to orders on when a single drawbridge should open or close. But this year, the feds will likely issue far fewer of these regulations. While Donald Trump's poor planning and web of scandals have stalled his agenda in Congress, his administration is living up to one of his promises: It's blocking and delaying all the rules and regulations it can.
Two reports out this week, from the moderate conservative American Action Forum (AAF) and Politico show just how drastically Trump and his cabinet and agency heads have slowed the pace of the issuance of new federal rules and regulations. "By virtually any measure, dating back through two Democratic presidents and one Republican president," AAF regulatory expert Sam Batkins wrote in his report, "the lack of regulatory output is historic."
As of late May, the Trump administration had issued 1,005 rules, but most of them were minor—like designating airspace over a ranch in Montana for a specific purpose. It only let 15 major rules through by Politico's count, versus 93 cleared or issued by the Obama administration in the same time period and 114 by the George W. Bush administration. The AAF, whose numbers differ slightly, notes that Trump's rate of rule withdrawals has been significantly higher than Bush's or Obama's, and his team has been slower to review rules.
How does this affect normal people? Amit Narang, a regulatory affairs expert at the Public Citizen watchdog group, pointed to a couple dozen delayed rules he believes are especially important for public health and safety. One delay means mine workers will not receive common-sense and long-expected protections from hazardous working conditions until next fall, if ever. Another means that schools will be allowed to continue serving kids less healthy food into the 2020s at least. And a big delay means that power plants will not have to abide by new limits on the amount of toxins like arsenic, lead, and mercury they can dump into waterways until the midterms.
The bulk of Trump's regulatory slowdown stems from his first presidential memorandum, issued on his first day in office. That froze all Obama-era rules not yet in fully enacted, a standard move for any new administration. But Narang told me that Trump has turned what's usually a brief pause into an ongoing moratorium. The administration has slapped further delays on as many rules as it could and asked courts weighing challenges against some rules to hold off on their decisions as the administration works on potentially rolling them back.
"They've been more aggressive" than recent administrations said Tom McGarity, a regulatory watcher and member of the Center for Progressive Reform. "I've seen more cases [on regulations delayed now] than I've ever seen at the change of an administration."
These delays could be a byproduct of understaffing. Many of the hundreds of unfilled posts in the federal government deal with the rulemaking process. "We don't even have a head of the Office of Information and Regulatory Affairs (OIRA)," the White House's clearinghouse for new rules and regulations, noted McGarity.
But they're just as likely an extension of Trump's anti-regulatory zeal, which surpasses even that of a normal anti-government Republican. "The people who have been appointed see the administration saying, 'don't regulate,'" said McGarity. "So, they're not regulating."
Another obstacle for any new regulation is Trump's late February executive order requiring that for each new major regulations, two old ones together equal to its cost must be slated for elimination. This order, Narang points out, has not been put to the test as the rules that have advanced so far have apparently flown under its radar. We won't know how stringently it will be applied until the OIRA issues its Unified Agenda, outlining its plans for regulation over the coming year. But Narang argues that the order will make issuing commonsense rules nearly impossible—picking rules with no value to be axed will be hard enough, then rolling back rules takes as long as making them, and revocations will be fought tooth and nail by interest groups.
"I don't think they had given as much thought to just how profoundly difficult it would be for agencies to issue regulations because of urgent health and safety threats or because Congress requires them to do so," said Narang.
Trump's regulatory delays can't last forever, though. Agencies are required by law and court orders to move forward on some rules. We've already seen the Department of Labor decide to move forward on the long-delayed "fiduciary rule," which will require financial service advisors to act in their clients' best interest when offering them retirement savings tools, because Labor couldn't find any reasonable grounds to hold it back.
Public Citizen and the National Resources Defense Council have sued to kill Trump's one-in-two-out order as an unconstitutional restriction on agencies' abilities to carry out their legal mandates to regulate. Interest groups will likely file further lawsuits demanding that specific rules be allowed to move forward despite the order soon. And while many corporations love Trump's deregulatory environment, some are reportedly pressuring the administration to let more regulations through the gaps. McGarity pointed out that food manufacturers want a federal regulation on how and when to label products containing genetically modified elements so they won't have to flounder in a patchwork of state regulations.
Even with these pressures to move forward with some regulations, team Trump is still understaffed and seems willing to push as hard as it can against anything. The White House can get by with just easing off the brakes on new regulations a bit by year's end, kicking and screaming all the while.
That will make anti-government ideologues happy. But others generally do want the government to, well, govern. "There are a host of common-sense, no-brainer regulations that are frankly popular with the public," said Narang, like that delayed rule on keeping arsenic, mercury, and lead out of the water.
"The public's going to pay the price" for this administration's willful regulatory blockage, he added, "in lots of ways."
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