A Remarkable First Hundred Days of Regulatory Reform
By Phil Kerpen
President Trump was elected to reverse the massive regulatory power grabs of the Obama administration and, in the words of chief strategist Steve Bannon, to deconstruct the administrative state.
Success would mark the reversal of a century-long trend of Americans being stripped of the authority to make our own decisions about how to take care of ourselves, our families, our homes, and our businesses at the whim of self-styled experts – the technocrats, bureaucrats, university professors, and other elites.
Now the pendulum finally is swinging back towards individual freedom.
President Trump has signed 13 resolutions pursuant to the Congressional Review Act (CRA) that overturn specific, individual Obama regulations and bar agencies from ever promulgating a substantially similar regulation without express congressional authorization.
Some of the most significant regulations overturned via CRA include:
· the outrageous Stream Buffer Rule that Office of Surface Mining personnel were caught on tape telling contractors was designed to be “atomic” for coal production in Appalachia;
· a gun control measure adopted by the Social Security Administration that would have blocked gun purchases by anyone with a mental health condition that requires assistance in their collection of financial benefits;
· HHS rules prohibiting states from disqualifying abortion providers from Medicaid and Title X taxpayer funding;
· the “blacklisting” rule that would have potentially barred companies from federal contracting based on unproven accusations of labor law violations;
· and the much-maligned by fake news FCC privacy rule that was actually designed to protect Google and Facebook’s domination of online advertising by effectively banning phone and cable companies from running their own online advertising platforms.
Each of the regulations overturned was significant in its own right, but even more notable was the fact that this law, which had only successfully been used once since it passed back in 1996, has been used 13 times in 100 days – exercising a badly atrophied muscle in Congress for reviewing and overturning individual regulations.
The Congressional Review Act mechanism is limited by law to regulations adopted at the very end of the Obama administration, so President Trump also moved aggressively on other tracks to reverse the major regulatory abuses beyond its reach.
The Department of Transportation is moving to take back its authority over the Corporate Average Fuel Economy program from the EPA and California and to dial back impossible requirements imposed by Obama that go far beyond what was actually authorized by statute.
The Department of Labor has delayed the compliance date and begun a process that could rescind its so-called Fiduciary Rule, which imposes over $30 billion in costs and would deny investors their own choice of investment adviser by driving many small, independent providers out of business.
The FCC – under Trump-designated chairman Ajit Pai – has already implemented an impressive number of reforms and is beginning the process of reversing one of the tent-poles of Obama’s pen-and-phone agenda: the disastrous 2015 FCC order reducing broadband Internet access from a competitive private market to a heavily regulated public utility.
Most significantly, President Trump appointed a new EPA administrator, Scott Pruitt, with a clear mandate to restore the rule of law and a healthy dose of federalism to that rogue agency, which has had an outsized impact on the economy and individual freedom head and shoulders above the rest of the federal Leviathan. In particular, pursuant to Trump’s energy independence executive order, the EPA is moving to reverse the so-called Waters of the United States rule that expanded federal jurisdiction over nearly every drop of moisture in the country and the so-called Clean Power Plan, the pen-and-phone, lawless mechanism by which President Obama tried to make good on his promise to make electricity prices “necessarily skyrocket” after Congress and the American people rejected his cap-and-trade plan.
It gets even better. While the Trump administration has moved aggressively on individual regulations, it has also taken multiple steps to fix the overall regulatory process.
Trump’s landmark two-for-one executive order requires a federal agency promulgating a new regulation to first rescind two old regulations of comparable size – reducing not just the burden of federal regulations, but also their staggering number. Less noticed but even more significant, that order also required every federal agency to keep a running budget of the total cost its rules impose on the American people – and for the net cost to be capped at zero for 2017. That means no new burden can be imposed without concomitant existing burdens being removed. Inspiring further confidence that this is a serious effort, President Trump recently nominated noted scholar and critic of excessive regulatory power Neomi Rao to implement this executive order as administrator of the Office of Information and Regulatory Affairs.
Through a separate executive order President Trump created regulatory reform task forces within each agency to identify and tee up for elimination rules that hurt job creation, are outdated or unnecessary, impose costs that exceed benefits, or conflict with the president's pro-growth, pro-America agenda.
President Trump has also begun a formal process for streamlining, combining, and actually eliminating federal programs and even entire agencies that is being overseen by his inspired pick for Director of the Office of Management and Budget, Mick Mulvaney.
And while much has been made of the relatively slow progress in Congress on repealing Obamacare and Dodd-Frank – the two vast expansions of regulatory process under Obama that actually did pass through Congress – President Trump has not waited on Congress to move forward, with executive branch efforts to dial back the worst excesses of those laws using a pair of executive orders that have set in motion serious efforts at HHS and IRS to make Obamacare less burdensome and in the financial regulatory agencies to prevent bailout and maximize individual choice.
Nobody thought President Trump could reverse 100 years of accumulated federal regulatory overreach in his first 100 days. But he sure is off to a great start.