Recent Trump Anti-Reg Order Could Breathe New Life into Dangerous Old Law

by James Goodwin

The first rule of reading anti-regulatory bills, executive orders, and other policy prescriptions is: Sweat the hyper-technical, anodyne-sounding stuff. And President Donald Trump's February 24 executive order on "Enforcing the Regulatory Reform Agenda" demonstrates why this rule exists. 

One of the order's provisions – which no doubt caused glaze to form over many an eye – read: "[E]ach Regulatory Reform Task Force shall attempt to identify regulations that . . . are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note)." I know my eyes glazed over the first time I read it. But it's worth a careful look at what that obscure legal citation refers to and what its inclusion could mean for existing regulatory safeguards. 

First things first, though. Trump's February 24 order – in a depressingly hilarious twist of irony – sets out to tackle the scourge of excessive bureaucracy by . . . creating more bureaucracy. Every executive  branch agency must tap a Regulatory Reform Officer who is charged with ensuring that agency's compliance with previous executive orders addressing regulatory policy, including Executive Orders 12866, 13563, and 13771. Trump's new order also charges executive branch agencies with assembling a Regulatory Reform Task Force comprising at least six members. Each of these Task Forces is then charged with the responsibility of reviewing that agency's existing regulations to find candidates for the chopping block. 

And this comes on top of the Regulatory Policy Officers and Regulatory Work Group established by Executive Order 12866 to carry out still other regulatory reform efforts! 

The Regulatory Task Force's regulatory review process is where the eye-glaze provision comes in. The order includes rules that purportedly run afoul of the obscure law as among those that the Task Force should prioritize for elimination. 

So, what is "section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note)"? It is the legal citation for a law commonly referred to as the "Information Quality Act" or "Data Quality Act." Neither of these is the official name of the law, mind you. That's because the law is of such dubious provenance, it lacks an official name. It was adopted as a two-sentence anti-regulatory rider buried in an appropriations bill that was over 700 pages long, unbeknownst to nearly every member of Congress who voted on it. 

The Information Quality Act directs agencies to ensure and maximize the quality of information that they disseminate and to establish an error correction process. It also directs the White House Office of Management and Budget (OMB) to issue guidelines outlining how agencies are supposed to implement these new requirements and incorporate them into their day-to-day work. 

At first blush, this law doesn't sound so bad. Who could be against the government relying on high-quality information? The problem, though, is that it provides corporate interests with a powerful tool for gumming up the regulatory works through endless challenges to any and every piece of information or data upon which an agency rests its regulatory decision-making. Industry lobbyists, already looking for new ways to rack up billable hours, can, with just a modicum of creativity, find any number of ways to poke holes in agency data. In most cases, all that's required is to dress up what is in reality legitimate scientific uncertainty in the garb of poor quality data. 

And we're not just talking about the well-documented politicized debates over matters like climate change, either. Some industry groups have been so shameless in their attacks on agency science that they have even rejected the idea that ground-level ozone – arguably the quintessential air pollutant threat to public health – is harmful to human health at all. Under the circumstances, nearly any agency information or data, no matter how sound, could be ripe for challenge. With agencies already operating on shoestring budgets, it's easy to see how responding to these challenges can quickly become a huge impediment to progress on advancing their statutory missions of protecting people and the environment. The predictable result is that agencies would be prevented from disseminating key types of information to the obvious detriment of the public interest. 

The one saving grace in the Information Quality Act fiasco is that courts have determined that an agency's response to a challenge to its data or information is not judicially reviewable. This is a good thing. A 2006 CPR report explained, "Of particular concern is the potential for judicial review to further contribute to the 'ossification' of information dissemination and, in some cases, regulatory action." Plus, such judicial review would put decidedly non-expert judges in a position of refereeing disputes over the "quality" of agency information. At best, they will get decisions wrong due to ignorance. At worst, they will rely on their policy preferences to resolve the disputes. 

Over the years, anti-regulatory members have sought unsuccessfully to make agency implementation of the Information Quality Act judicially reviewable. Most recently, the various iterations of the Regulatory Accountability Act have sought to amend the Administrative Procedure Act to include an enforceable requirement that agencies ensure that their rules comply with the Information Quality Act. 

With his latest executive order, it appears that Trump is now seeking to "anti-regulate" where Congress could not legislate. Fortunately, because it's an executive order, the direction to agencies to base their deregulatory decisions on compliance with the Information Quality Act does not have the force of law, and thus cannot be judicially enforced. But the order does offer the potential of giving the act stronger teeth to bite. Working hand-in-pocket with politically well-connected industries, Trump administration officials can identify disfavored existing rules and then develop an ex post theory for why it runs afoul of the Information Quality Act, thereby supplying the rationale for targeting the rule for elimination. 

Of course, a finding that a rule is purportedly inconsistent with the Information Quality Act would not absolve the rulemaking agency of the legal responsibility of employing the Administrative Procedure Act's well-defined notice-and-comment procedures for eliminating or weakening the rule. Nor would it provide an adequate legal basis on its own for eliminating or weakening the rule. Nevertheless, the deployment of the Information Quality Act would provide strong political cover while carrying out this process for attacking popular safeguards. 

The order requires all Regulatory Reform Task Forces to submit a report by May 24 to their respective agency heads in which they outline the progress they've made on their regulatory review efforts. It will be telling to see what role the Information Quality Act plays in any rules they have identified for elimination or weakening.



© 2016 The Center for Progressive Reform