Federal agencies have shifted their focus under the Trump administration from writing regulations to getting rid of them.
In just the past few days, the Education Department said it is working to redo two Obama-era rules aimed at reining in for-profit colleges, the Food and Drug Administration indefinitely delayed new rules to overhaul nutrition facts labels and the Consumer Product Safety Commission asked the public to suggest ways it can reduce the burdens and costs of its existing rules.
President Trump said during the campaign that “70 percent of regulations can go,” and he quickly issued a moratorium on new rules after taking office, bringing the work of regulators to a halt.
Though it’s typical for a new administration to issue a regulatory moratorium, what came next was unusual.
Republicans used the Congressional Review Act (CRA) to overturn regulations that the Obama administration had finished in its waning days. The law gives Congress 60 legislative days to repeal a rule after it’s been finalized. Before this year, the law had only been used once to scrap a regulation.
The Republican Congress managed to repeal 14 rules under the law before time ran out in May.
But now that the administration’s moratorium has lifted and the window to repeal rules under the CRA has closed, agencies are turning to the only tool they have left for paring back rules: regular order.
To change or repeal an existing rule, an agency must follow the same steps that are required to issue a new rule under the Administrative Procedure Act. The process involves several steps and can take years, something noted by liberal advocates opposed to Trump’s approach.
“Obviously a lot of regulations are viewed as critical public health and safety protections so we’re not thrilled they are being looked at as something that can be taken away, but the regular rulemaking process is laboriously slow,” said Lisa Gilbert, vice president of legislative affairs at Public Citizen.
“In this case it might serve us because it takes a long time to go through the actual rulemaking process and have the notice and comment, required roundtables and economic analysis that’s needed. It’s just not quick and that’s helpful.”
Trump issued an executive order at the end of January directing federal agencies to find two rules to eliminate for every new rule proposed, a step that was hailed by the business world and by conservative groups.
Industry advocates have long argued that red tape from Washington holds them back, and Trump officials have touted the deregulatory push as crucial for boosting economic growth.
Advocates of deregulation say it’s hard at this point to gauge if Trump is succeeding in paring down the regulatory rulebook.
“When you try to eliminate a rule that’s also a rule,” said Wayne Crews, vice president for policy at the Competitive Enterprise Institute (CEI). “That’s a thing that makes measurement difficult right now.”
Still, Crews said the number of proposed and final rules put forward under Trump is down from past administrations.
CEI released stats earlier this week showing a 7 percent decrease in rules under the Trump administration compared to the Obama administration during the same period of time — Jan. 20 to June 7, 2016.
When President Reagan took office, Crews said final rules and pages in Federal Register dropped by more than a third; there hasn’t been a decline as significant since.
“It’s yet to be seen what the ultimate success of his executive actions will be,” Crews said of Trump. “In order for things to be sustained there needs to be bipartisan action.”
While Trump’s two-for-one order for regulations is useful, Crews said he’d rather see it passed as a law.
Meanwhile, Trump’s Cabinet members are marching ahead with efforts of their own.
The head of the Environmental Protection Agency reportedly told coal miners in April that the “regulatory assault is over.”
“It's sad that a regulatory body, the federal government of the United States, would declare a war on our energy industry,” Scott Pruitt he said while announcing a new campaign to return regulatory authority to the states and focus the EPA on regulating water and air pollutants while repealing Obama-era rules.
But Brett Hartl, the government affairs director at the Center for Biological Diversity, noted that agencies can’t just repeal or change a rule without a valid justification for doing so.
“When it comes to rollbacks, they have to justify them and the law is not on their side because most of the laws on clean air, clean water and endangered species are meant to further the protection of the environment,” he said.
“You can’t just say we’re rolling them back because Trump told us to that’s not a legal, valid reason to do that. They still will try, but I don’t think they will get very far."
Department of Labor Secretary Alexander Acosta acknowledged the constraints of the law earlier this month, telling lawmakers he can't snap his fingers and undo a rule.
“No one in government should be able to snap their fingers and undo laws or undo rules because that’s not a respect for a fundamental democracy,” he said.
Acosta was explaining to Republican members of a House appropriations subcommittee why he decided to implement a controversial Obama-era financial adviser rule.
He said the administration found no legal basis for delaying it any further delay. But the Labor Department is on the hunt for new information that would allow it to make changes.