It probably won’t result in bureaucratic chaos—but you should pay attention to a little-known bill that just passed
President Donald Trump signs an executive order.
On Monday, while most of the world was still reeling from the chaos ignited by the travel ban, President Donald Trump signed yet another executive order, this one aimed at handcuffing administrative agencies from issuing new regulations. The order calls for agencies to essentially revoke two regulations for every new one that is implemented. “So if there’s a new regulation, they have to knock out two,” Trump said, following through on a promise Trump made after the election, when he said on YouTube, “I will formulate a rule which says that for every one new regulation, two old regulations must be eliminated.”
Through this “one in, two out” order, Trump wants to make it harder for agencies like the Environmental Protection Agency and the Department of Energy to issue rules that could, for instance, protect public health or mandate levels of energy efficiency in appliances. Likewise for consumer protections, workplace safety, housing discrimination, oversight of big banks, voter rights, and the majority of public protections developed by executive branch agencies, which are typically charged to do so by some law passed by Congress.
[quote position="right" is_quote="true"]The president cannot repeal statutes. You’d have to go through Congress.[/quote]
“If you have a regulation you want, number one, we’re not gonna approve it because it’s already been approved probably in 17 different forms,” Trump said. “But if we do, the only way you have a chance is we have to knock out two regulations for every new regulation.
But before you start worrying that that the order puts us on a path to rampant deregulation, where industries and companies are free to do whatever the hell they please with no oversight or restriction, legal experts quickly threw some cold water on the president’s directive, which has been alternately described as “absurd,” “not legitimate,” and “mindless” by public officials and the press.
Jody Freeman, a law professor at Harvard University, called the “2-for-1” policy “arbitrary, not implementable, and a terrible idea,” adding that “the order is vague in many respects,” and that it tasks the director of the Office of Management and Budget (OMB) to sort out the details of how it will be implemented. Trump’s lawyers also felt compelled, more than once, to include the condition that it will be implemented “to the extent permitted by law.” Meaning that agency regulations that were developed and issued to satisfy a statute from Congress couldn’t be either blocked or “knocked out.”
More from Freeman:
A president can’t order his executive agencies to disobey the law in any event, and if the agencies try to disobey statutes, they will be called to account by affected parties who will file lawsuits challenging their unlawful actions.
Talking to Quartz, Gregory Wawro, a political science professor at Columbia University, echoed this sentiment. “The president cannot repeal statutes. If the law gives agencies authority to make regulations, in order to remove that authority, then you have to pass a new statute revoking that authority. You’d have to go through Congress.”
The order itself acknowledges this, though you wouldn’t know it from Trump’s rhetoric.
Hilariously, sec. 5 says EO is not to be construed to limit or affect "the authority granted by law to an executive department or agency."— Lisa Heinzerling (@Lisa Heinzerling) 1485801107
Even if the order did have legal teeth, implementing it would be confounding, and—contrary to its stated goals—almost certainly wind up costing the public more money. Freeman explained using this hypothetical:
If an agency wants to issue a rule that is expected to have $1 million in regulatory costs, but is expected to have benefits of $1 billion (1,000 times as much), the agency could not issue that regulation unless it agrees to get rid of at least two regulations with at least $1 million in total cost. The net benefits (benefits minus costs) of the rule being issued or the rules being eliminated do not matter. And, because OMB’s annual reports show that virtually all rules issued in the past 10-15 years have greater benefits than costs (except for a few that were specifically required by Congress), eliminating an existing rule will likely reduce net benefits.
Sure seems like a good thing this order carries no legal weight, right? Alas, Congress is already working on its own “pass-and-repeal” law. Trump’s “2-for-1” order shares some striking similarities to a provision in the REINS (Regulations from the Executive in Need of Scrutiny) Act of 2017, which passed in the House on January 5. The bill includes an amendment, introduced by Republican Rep. Luke Messer of Indiana, which aligns smoothly with Trump’s order.
Steve Horn at DeSmog (where, full disclosure, I also write) noticed that the amendment, which states that for every federal regulation created, another must be amended or retired, is a direct “clone” of the SCRUB (Searching for and Cutting Regulations that are Unnecessarily Burdensome) Act, “a bill lobbied for by America's Natural Gas Alliance, the Business Roundtable, the U.S. Chamber of Commerce,” among others. Horn’s investigation found that the REINS Act, and the SCRUB Act before it, were pushed for heavily by—and very possibly drawn up by—Koch Industries and think tanks funded by the Koch brothers and their political networks. As it happens, the Koch-funded political advocacy organization FreedomWorks was quick to “applaud” the passage of the REINS Act in the House, posting this information about the bill on their website before it had even been voted on.
[quote position="left" is_quote="true"]If the REINS Act survives the Senate, the heart of Trump’s directive would still be arbitrary, impossible to implement, and costly. But it would also be law.[/quote]
(Besides the “pass one, repeal one” provision, there are other frightening aspects of the REINS Act as passed, but those are for another time. For a quick summary, check out Natural Resources Defense Council’s David Goldston, a former Republican congressional staffer who has been speaking out against the REINS Act since it was first introduced to the House in 2011.)
The REINS Act is currently sitting in the Senate, where it’s been stuck in committee waiting for deliberation and a vote. Trump’s “2-for-1” executive order might be arbitrary, impossible to implement, costly, and ultimately toothless from a legal standpoint. But if Messer’s amendment and the REINS Act survive the Senate, the heart of Trump’s directive would still be arbitrary, impossible to implement, and costly—but it would also be law.