On Monday morning, Donald Trump, who was sworn in as president just over a week ago, signed an executive order intended to cut federal regulation. Many news outlets reported that it fulfilled his campaign promise to, on his first day in office, immediately pursue “a requirement that for every new federal regulation, two existing regulations must be eliminated.”
Yet the Executive Order does not reflect the pursuit of his actual promise. It does not actually require that two regulations actually be repealed, only that agency heads identify “at least two prior regulations” for elimination. Federal laws are on the books that compel the executive branch to promulgate regulation to implement various laws. It’s not as simple as eliminating regulations in a reverse bizarro-world BOGO regulation purge.
“There’s a lot of theater, and really bad theater, associated with this Executive Order, which is one reason to view it as snake oil that fundamentally fails to fulfill a campaign promise even if it intends to do so,” John Walke, senior attorney and clean air director at the Natural Resources Defense Council, told ThinkProgress. These regulations targeted by the administration are mandatory, passed by Congress, and can’t simply be eliminated without violating federal law.
“It seeks to ration the American people’s health and safety by forcing agencies to arbitrarily drop rules, even if those regulations prevent illnesses, reduce exposure to toxic chemicals, or decrease the number of deaths and serious injuries in the workplace,” Center for Progressive Reform President Robert Verchick said in a statement.
Surrounded by small business owners at his desk in the Oval Office, Trump signed the order after painting the action in typically hyperbolic terms.
So if there’s a new regulation, they have to knock out two. But it goes far beyond that. We’re cutting regulations massively for small business — and for large business but they’re different — but for small business, and that’s what this is about today. And this will be the biggest such act that our country has ever seen. There will be regulation, there will be control, but it will be normalized control where you can open your business and expand your business very easily.
“I can’t help but marvel that at a ceremony surrounded by small business owners, the phrase ‘small business’ is not used once in the order,” Walke said. Walke said it was clear — through the order itself and Trump’s admission — that the order was targeted at big business.
While Trump’s rhetoric may have been overblown in calling it “the biggest such act that our country has ever seen,” and reports that he fulfilled his campaign promise may have been overstated, this does not mean the Executive Order will not have an impact. It will absolutely throw more red tape in front of new regulation, hamstringing the government’s ability to protect the public against threats posed by new technology such as drones, nanotechnology, or driverless cars.
The order also set up a process for the White House to place an annual cap on the cost of existing regulation, and require that the cost new regulation be offset by the cost of existing regulation.
“One of the most pernicious features is of this Executive Order is this new regulatory cost budget, which is clearly intended to deter new regulations,” Walke said. “But the problem for the Trump administration is that obligations in federal law trump President Trump. He cannot just direct agencies to violate federal law or starve enforcement of law with a gimmicky regulatory budget.”
It is an open question how these regulatory budgets will be determined. Some of these rules are decades old and there is no guidance for how the Director of the Office of Management and Budget (OMB) should estimate their costs.
Still, even if the order does not, and cannot (due to federal law), require specific regulations to be eliminated, it could spur agencies to repeal some regulations through the cost budgeting portion of the order.
“The Executive Order does say that agencies must ‘identify’ two regs to be repealed for every one issued,” Georgetown University law professor Lisa Heinzerling told ThinkProgress. “One might say this means they only need to identify them, not necessarily repeal them. But the Executive Order requires zero incremental regulatory costs this fiscal year, to be achieved by identifying rules to be repealed. So repeal really is required by the terms of the order unless one of the grounds for waiver applies (required by law or consistent with advice by OMB Director).”
It will also be very difficult to actually implement.
“The overall impression is this Executive Order is marked by strident hostility for federal protections for Americans,” Walke said. “The way it’s carried out though, is nearly as chaotic as the other Executive Orders he’s signed. Foremost, despite his claim this would eliminate two regulations for one new regulation, it’s cynical snake oil for his base.”
“There’s a stunning amount of unanswered questions and responsibility turned over to people at OMB. There are so many holes and clear transgressions that could only be addressed through significant amounts of new guidance,” Walke said.
“I also think it’s incumbent upon us to cut through this to say that even if the administration executes their dastardly deeds with ineptitude, they’re still dastardly,” Walke said.
Heinzerling noted that the order does permit agencies to pass regulations required by law, although statutes can be so ambiguous as to which rules are required, and which rules are allowed. This means lawsuits.
Should the administration attempt to roll back legally necessary regulations, Walke said the public would take action. “They will file lawsuits that require agencies to follow federal law — and this Executive Order gives agencies no defense,” he said.
One thing the order completely ignores is the social, economic, and environmental benefit inherent in so many of these regulations. Many regulations have no cost or a net positive impact on the economy and the budget and it remains to be seen whether the administration will ignore this.