During his presidential campaign, Donald Trump spoke about deregulation in terms similar to nearly every Republican who has sought the office since the 1980s. He said he would sweep away regulations, unleash the economy and let the market solve problems. But, while most other Republicans have issued roughly as many regulations as their Democratic counterparts, Trump has kept his word. His administration has issued fewer new regulations during its first year than any other administration since current record keeping began, while also withdrawing a record number of such rules. Just about a year into his deregulatory push, the early returns look good. Not so much because anyone can prove that repealing rules has improved the economy (the data are still coming in), but rather because the deregulatory push has allowed for healthy democratic debate and discourse over issues that were being decided–wrongly–in the executive branch. Messy and even painful as this is, it will probably result in better regulation and a healthier democracy in the long run.
For the most part, Trump’s deregulatory efforts to date have been pretty simple: where the Obama administration tended to push federal powers to the maximum limits allowed under law, Trump’s appointees have minimized them. For example, everyone who looked at it agreed that Obama’s Waters of the United States Rule expanded federal control and changed the rules of the road under which people operated every day. As the rule infamously bought enormous amounts of water under direct federal oversight—privately dug ditches would been regulated from Washington if they connected to streams—it had vast implications in businesses diffuse as agriculture, manufacturing and recreation. Even if it courts had ultimately upheld it as lawful (they ended up granting a stay before Trump’s administration rescinded it), it would have represented a major policy change for many made without a whisper of input from anybody in Congress. There’s no reason to imagine that Congress as an institution wants to see the executive branch innovate so boldly based on such flimsy statutory support. As Justice Scalia memorably put it, Congress does not “hide elephants in mouseholes.”
In other cases, doing away with regulations has punted back to Congress things that it should have dealt with but didn’t. For example, the Obama administration’s Federal Communications Commission imposed burdensome Title II regulation on the entire internet in the name of “net neutrality” and Trump’s appointee to head the FCC did away with it. The resulting regulatory system still doesn’t necessarily please anyone. But, unlike some issues that are relatively simple—everybody agrees that drinking water should be clean, for example—regulations concerning the internet involve trading off a lot of sympathetic and important interests. There’s no equation that can determine complex tradeoffs that should be made and any decision will (properly) be based on a variety of values rather than cold mathematical calculation. And these are the types of choices that Congress should make even if it’s within the power of other agencies to make them.
All this said, Donald Trump obviously isn’t a minimalist when it comes to his overall conception of executive power or presidential reach. Indeed, many scholars and courts have taken a dim view of his administration’s expansive conceptions of powers related to war making and immigration. If he’s faced with a Democratic Congress—as looks increasingly likely—it will be interesting to see how Trump deals with any efforts the “first branch” might make to rescind regulations that he does find necessary or try to reign in his other powers. For the time being, however, he does deserve a fair measure of credit for delivering on his deregulatory promises.
Image credit: jessada upani