Executive orders alone can’t create sustainable deregulatory change
Both during the election campaign and over the first 100 days of his administration, President Trump has declared his commitment to deregulation. Dubbed the “most aggressive campaign against government regulation in a generation,” Trump has issued a series of executive orders that seek to put the country on a clear deregulatory path. Unfortunately, this effort is destined to disappoint unless Congress gets involved.
In January, Trump issued the centerpiece of his deregulatory agenda, Executive Order 13771, which requires federal agencies to repeal two old regulations for every new one they enact. The order also establishes a kind of “regulatory budget,” capping the total costs federal agencies can impose on individuals and businesses each year. While deregulation advocates have applauded these early moves, the president cannot alleviate the nation’s regulatory burden alone.
Even if Trump’s executive orders are successful in cutting back regulations, they are subject to immediate reversal once a new president is elected. Only Congress can pass legislation that locks-in sustainable reforms. As the Trump administration itself has shown through its efforts to rescind Obama-era executive orders, a “pen and phone” strategy of governing is not a good way to make durable reforms.
Congressional involvement in regulatory reform also is important to foster accountability in our democratic system of governance. Current polling suggests only one in five Americans trusts the federal government. Congress’ decision increasingly to abdicate its role as chief lawmaker and delegate its powers to unelected agency bureaucrats has only contributed to this cynicism. As Philip Wallach of the Brookings Institution put it: “Americans hope to find clear lines of legal authorization and responsibility in the bureaucracy,” but instead they confront a “tangled expanse” of agencies that often have “overlapping responsibilities” and “obscure funding sources.”
Congress needs to reclaim its governing prerogatives and act to rein in federal agencies. The way to do this is to pass comprehensive regulatory reform that alters the processes by which agencies implement new rules. Congress also must establish a better system to repeal harmful rules that already have been enacted. Luckily, numerous regulatory-reform bills have been kicking around Congress in recent years that do just that, leaving members with a menu of options from which to choose.
For instance, Congress could enact the REINS Act, which would require both houses of Congress to sign off on especially costly regulations before they can take effect. Another option is the SCRUB Act, which would establish a commission to help Congress identify outdated and burdensome regulations that should be eliminated. The Article I Regulatory Budget Act, proposed by Sen. Mike Lee, R-Utah, would codify the kinds of regulatory budgeting mechanisms included in Executive Order 13771. Importantly, these examples are just a small sample of the many regulatory-reform templates available.
The U.S. House of Representatives already has passed several of these reform bills in the current Congress, and the Senate is expected to take them up in the coming weeks. Recent collaborations between Republicans and Democrats—including several proposals co-sponsored by Sens. James Lankford, R-Okla., and Heidi Heitkamp, D-N.D.—are particularly noteworthy, since Democratic buy-in likely will be critical for such legislation to clear the Senate.
Passing regulatory reform may seem an uphill battle in today’s hyperpartisan and dysfunctional political environment. But unless Congress moves to assert itself, we can’t count on truly long-lasting deregulatory change.
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