Rather than a press conference or interview, Trump put out a video seemingly to assure Americans that we don’t have to spend our days and nights in absolute terror because he’s in charge. Flip to the end: he didn’t succeed.
All Trump did was create confusion. Reading the transcript doesn’t provide more clarity.
There is much in the short Trump video to cause one sleepless nights, but the Trump promise that really grabbed me is his promise of a rule to kill rules:
On regulation, I will formulate a rule which says that for every one new regulation, two old regulations must be eliminated, it’s so important.
In effect, he’s proposing a Terminator Rule.
Leaving aside the soundness of just tossing rules and regulations aside, can Trump as President create a Terminator Rule?
A Brief History of Execution Orders Related to Regulations
Through the power of the Executive Order, Presidents can influence regulations. Jimmy Carter signed Executive Order (EO) 12044, which sought to improve government regulations by removing those that placed an undue burden on industry and individuals. It also established public review of new regulations and encouraged efficiency in the rulemaking process.
EO 12044 was revoked by Ronald Reagan, who had almost a fetish about undoing all of Carter’s work. Reagan issuedExecutive Order 12291, which not only revoked EO 12044, but also demanded a cost/benefit analysis be performed on both new and existing regulations. The problem with EO 12291 is applying a pure cost/benefit analysis on regulations related to the environment, health, and safety can undermine the overall risk to society by focusing too much on the cost to industry.
Bill Clinton revoked EO 12291 when he issued EO 12866. Its principle purpose was:
Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people. In deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives, including the alternative of not regulating. Costs and benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be usefully estimated) and qualitative measures of costs and benefits that are difficult to quantify, but nevertheless essential to consider. Further, in choosing among alternative regulatory approaches, agencies should select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach.
It, like other executive orders related to regulation, tasked agencies with reviewing their regulations to look for those that needed to be modified, or eliminated. In addition, significant regulations—those whose economic costs exceed $100 million a year, that may have new legal impacts, that may contradict with regulations in other agencies, or have budgetary impact—required a plan which included, among other things, an estimation of costs and benefits.
EO 12866 was amended by EO 13528 and EO 13422. Both of these amendments were signed by George W. Bush. EO 13258 amended EO 12866 by removing the Vice President’s formal role in reviewing regulations. But it was EO 13422 that caused the most significant problems.
Bush’s Executive Order 13422—the stuff of regulatory nightmares
The Center for Progressive Reform detailed the impacts of EO 13422. Bottom line, it forced agencies into designating which “market failure” was responsible for the new regulation. Not the public’s health or safety…market failure. To add to an already abysmal executive action, EO 13422 also demanded that a Presidential political appointee serve as the agency’s regulatory policy officer.
According to the Benton Foundation:
EO 13422 has been criticized because it: 1) gave agency “regulatory policy officers” the ability to scuttle proposed regulations without the input of the public or agency experts and 2) granted the White House Office of Information and Regulatory Affairs (OIRA) the power to review and edit agency guidance documents – a class which could include agency opinions, scientific documents, or memoranda and which, by definition, are nonbinding.
Another new item in EO 13422 was that guidance documents would be subject to regulatory review even though they are not binding. On this, the Center for Progressive Reform stated:
Whatever the wisdom of centralized OIRA review of binding agency rules, the same arguments do not extend to centralized review of non-binding agency guidance. Hundreds of guidance documents are issued each year, often in response to emergencies or other time-sensitive developments. Requiring agencies to stop dead in their tracks to justify the provision of guidance on “market failure” grounds could not be defended on policy grounds; nor could giving OIRA the authority to meddle in the substance of significant agency guidance.
Thankfully, President Obama issued his own executive order shortly after taking office, revoking EO 13422, as well as the companion amendment, EO 13528.
President Obama’s Regulatory Legacy
In addition to revoking the two Bush amendments, President Obama also signed a new regulatory executive order, EO 13563. The EPA provides a summary of this new executive action:
It reaffirms and amplifies the principles embodied in E.O. 12866 by encouraging agencies to coordinate their regulatory activities, and to consider regulatory approaches that reduce the burden of regulation while maintaining flexibility and freedom of choice for the public. It directs agencies to, where feasible and appropriate, seek the views of those likely to be affected by a proposed rulemaking before a notice of proposed rulemaking is issued.
EO 13563 also added an extraordinary level of transparency and public participation in the rule-making process. According to the IT Law Wiki:
Section 2 of the Order, entitled “Public Participation,” directs agencies to promote an “open exchange of information and perspectives” among all stakeholders during the regulatory process, and to provide the public with a “meaningful opportunity” to comment on proposed rules. Specifically, the Order directs agencies to provide the public with a “timely” opportunity to comment on proposed and final rules, and to make electronic rulemaking dockets, including the scientific and technical findings relevant to a proposed or final rule, available and searchable online. The Order also instructs agencies to “seek the views of those likely to be affected” by a proposed rule, including likely beneficiaries and those who would be subject to a rule. Notably, the Order directs agencies to do so before issuing a notice of proposed rulemaking.
In other words, Executive Order 13563 promotes increased public participation throughout all stages of the rulemaking process. Agencies will not satisfy the Order simply by allowing interested parties to comment on the text of a proposed or final agency rule after it is published in the Federal Register. Instead, it prescribes transparency—searchable, online access — to the docket underlying the proposed or final rule on Regulations.gov. Such access will foster meaningful participation during the development stage of proposed rules, not merely in response to propose rules. Full agency implementation of the Order over the next year and beyond will increase significantly the opportunities for public participation in the rulemaking process.
The Constitutionality of Trump’s Terminator Rule
It’s difficult to follow the path of executive orders impacting on the regulatory process. At one point in time, I had 23 tabs open in my browser, just trying to follow which executive order amended or revoked which other executive order. All of these executive orders countermanding executive orders also impact on the rule-making. I found an FDA plan from 1999 that demonstrates the twisted loops career agency employees must traverse just to do their job.
Bottom line, though, is that most of the executive orders related to regulations encompassed the same principles and processes. Significant regulatory action required additional analysis. Agencies are tasked with establishing rules that have the least negative impact. In addition, the public is invited to participate in the rule-making process and have our input incorporated into the agency deliberations. While addressing market failure is no longer the overriding goal of a regulation, agencies do have to take into account costs to industry and individuals when issuing or amending rules. Within limits.
In none of the executive orders did I find anything even remotely related to “for every new regulation, two old regulations must be eliminated.” There is nothing even approaching this concept in any past executive order.
Presidents can issue executive orders related to regulation because of their authority granted under the Constitution. Specifically, Article II Section 3 of the Constitution states about the President:
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Since George Washington, the highlighted section has been the basis for executive orders related to agency action and rule-making. All past regulatory executive orders can be constrained to fit within this criteria though some contortion is necessary for some of the actions (specifically, EO 13422).
Not Trump’s Terminator Rule. Every single executive order related to regulation requires that each regulation be subjected to its own due diligence and analysis based on whatever is the new executive action. There’s never been anything even approaching the absurdly general twofer that seems to form the basis for Trump’s promise.
Bluntly, Trump’s promise can not survive a Constitutional challenge. Period. End of story. It’s another case of Trump being ill-adapted to his new position, displaying his profound ignorance of our laws and regulatory system, and pitching his speech to reach a populace who have been deluded into thinking that regulations are the root of all evil impacting on their lives.
The Terminator rule is balderdash, hokum, and silly.
Buckle Up, Rough Roads Ahead
What is not silly, though, is Bush’s Executive Order 13422. What Trump can do is reverse Obama’s executive orders related to regulation and re-invoke EO 13422. Or he could issue new regulatory executive orders that are even worse.
We’re in for a rough four years, but we’re not helpless. For one, we can fund organizations with skilled legal teams ready to challenge dangerous Trump executive orders. Executive Orders are subject to court challenge, as we know from the court challenges against President Obama’s executive orders.
In addition, and perhaps most importantly, we need to be vigilant. When we see our water, our air, endangered species, and ourselves threatened, we must raise enough noise to ensure the negative consequences of Trump and his executive actions hit the front pages and the nightly news. And stay there.
Originally published in Crooks & Liars
Photo by Gage Skidmore CC BY-SA 2.0