President Trump’s recently issued executive order requiring agencies to trash two regulations for every one that they adopt is another ham-handed attempt to deliver on a campaign promise that will — like the recent immigration order — eventually prove unworkable. In the meantime it will prevent federal agencies from writing and enforcing regulations needed to protect us from serious risks to our health, safety, environment and pocketbooks.
Unlike the immigration order, this executive order will not inspire thousands of protesters to take to the streets because it will not have an immediate impact on a few susceptible individuals.
Instead, it is designed to slowly erode existing protections — like worker-safety standards, pollution limitations and consumer-fraud restrictions — while it prevents agencies from creating new protections against as-yet unaddressed hazards, such as the risks posed by nanoparticles in food and self-driving automobiles on the roads.
Problems with the order abound. First, it makes no sense because it requires an agency to repeal two rules before adopting a new regulation — even if the old rules are doing a good job of protecting the American public at a reasonable cost. It focuses exclusively on their cost to industry and ignores their benefits — monetary and otherwise — to the public.
Second, the president’s inner circle apparently assumes there are lots of old rules lying around that are no longer necessary to protect us from unsafe products, dangerous air pollution or risky behavior by banks that can bring down the economy. The problem with this view is that every president since Jimmy Carter has already ordered agencies to clear the books of unnecessary regulations, and there is no evidence that protections offered by many existing rules are not worth their cost — and plenty of evidence to the contrary.
Third, Congress has usually delegated to the heads of the regulatory agencies — not the president — the legal responsibility for adopting or repealing rules. While agency heads will ordinarily comply with presidential directives, they cannot willy-nilly withdraw rules that the White House does not like.
Under the Administrative Procedure Act, an agency must announce to the public that it is adopting or repealing a rule; give the public an opportunity to comment on the proposal; and be prepared to justify its action based on evidence and the policies inherent in the relevant statute. For regulations now on the books, agencies have already gone through this process and — in many cases successfully defended them in court. In the absence of new information relevant to agencies’ statutory missions demonstrating that existing regulations are no longer justified, attempts to repeal them are doomed to failure in court.
An agency’s plea that it has to repeal a rule because the president won’t let it promulgate an unrelated rule if it doesn’t will probably fall on deaf ears in a reviewing court. The Supreme Court has held that a president can require an agency to follow his regulatory policies — but only if they are consistent with the agency’s regulatory mandate.
Still, complying with the executive order will take time and cost a lot of money. Addressing the complex issues involved in many rule-makings can take years — four to eight years to finalize a rule and another one to two for judicial review. Three major rule makings – one to adopt a new rule, and two to repeal old rules – will take at least that long.
Agencies contemplating new regulations will have to devote thousands of hours and millions of dollars to assessing the costs of existing regulations to prioritize them for possible repeal. In an administration that has promised to slash agency budgets, that’s a recipe for delaying action on regulations necessary to protect people, their pocketbooks and the environment.
In short, the resident’s two-for-one executive order is arbitrary because it does not consider the regulatory benefits of new or existing rules. It is also unworkable to the extent that agencies are unable to demonstrate that existing regulations designated for repeal no longer protect the public and the environment. The order’s primary impact will be to muck up the administrative process, paralyzing agencies and preventing them from moving forward with their statutory missions.
If the president’s goal is to ensure that agencies promulgate sensible regulations, this is not the way to do it. If the president’s goal is to stop agencies from protecting the public, this is an especially cynical and nontransparent way to do it.
McGarity holds the Joe R. and Teresa Lozano Long Endowed Chair in administrative law at the University of Texas. Shapiro holds the Fletcher Chair in administrative law at Wake Forest University.