This post is the first in a series. Click to read the second and third posts.
Late Friday night, while news about Elon Musk’s apparent unconstitutional purge of the Office Personnel Management was beginning to trickle out, President Trump quietly announced his promised executive order calling on agencies to eliminate 10 existing “rules” for every new rule they want to institute.
Despite being one of the “less confusing” executive orders, it still leaves a lot of critical questions unanswered. For starters, why hasn’t the official order been published on the White House website? Instead, a copy has been posted to The American President Project website, and I will be drawing from that text for this analysis here. The White House website does have a “Fact Sheet” regarding the order, but as discussed below, there appear to be discrepancies between what is described there and the text of the executive order.
The bottom line is the situation should be considered fluid, and this analysis is preliminary and contingent.
With that, some topline takeaways:
In overall architecture, this order closely resembles the 2-out, 1-in order — Executive Order 13771 — from Trump’s first term. At the time that order was issued, it similarly raised a lot of questions and confusion. It took a series of follow-up guidance from the White House Office of Information and Regulatory Affairs (OIRA) to clear some of that up. We can look to that guidance as suggestive — but not necessarily determinative — of how Trump 2.0 will resolve similar questions this time around.
The Fact Sheet presents a much more aggressive, and likely unworkable, picture of the order’s requirement than the order itself does. Most notably, the Fact Sheet states, “whenever an agency promulgates a new rule, regulation, or guidance, it must identify at least 10 existing rules, regulations, or guidance documents to be repealed.” There’s quite simply no way government can function if agencies have to repeal 10 existing actions before issuing small rules and guidance. These are what literally and figuratively keep the trains running on time.
Despite industry’s overheated rhetoric against regulation, they will tell you in confidence that they actually desire and need certain small regulations and guidance. These are essential for providing the basic ground rules and guardrails that a well-functioning marketplace needs to keep humming along. Individual firms also need some semblance of short- to medium-term certainty to make necessary investments to innovate and expand their businesses. If Trump were to literally follow this command, you could expect a behind-the-scenes outcry from the business community.
The history of Executive Order 13771 and the ambiguous text suggests that the administration will design the actual implementation of the 10-out, 1-in executive order to make it a virtual certainty that Trump will succeed in meeting its “goals.” Following the issuance of Executive Order 13771, OIRA issued guidance on its implementation that was decidedly asymmetrical and revealed what a scam the whole thing was. The regulatory pay-go requirement that it created did exempt small rules and guidance: those that don’t meet the definition of being “significant” under Executive Order 12866. These small actions make up the vast majority of agency regulatory activity. At the same time, agencies could use any existing rule or guidance — no matter how small — as a qualifying deregulatory action. Where applicable, agencies could even claim credit for rules that were rescinded using the Congressional Review Act, even though they didn’t do the actual work of getting rid of them.
In short, the regime it created was a lopsided “apples in, oranges out” one, which was designed to make it all but impossible for agencies to fail to meet. By extension, Trump could then claim, falsely, to be a great deregulator.
We can expect Trump to play the same trick again with this new order. And he will really have to, because deregulation is difficult to accomplish, even for a competent administration. And if Trump 1.0 is any indication, we can expect Trump 2.0 to be just as big of a deregulatory failure.
The dirty little secret of the 10-out, 1-in executive order is that it’s not really about deregulation. Under black letter administrative law, it takes a rulemaking to eliminate a rule, and as it happens, that’s very hard to do. Trump failed spectacularly on this during his first term because his administration was uninterested in following basic procedural requirements and dismissive of the need to assemble a persuasive policy rationale, supported by the record, to justify his regulatory U-turns.
But what these regulatory budget schemes do provide is a convenient and even bombastic justification for what the Trump administration was going to do anyway: nothing. As he did the first time, Trump has stocked his agencies with leaders who are actively hostile to their public interest-oriented missions. They never had any intention of protecting consumer pocketbooks, cleaning up our drinking water, or ensuring that the food on store shelves is safe to feed our kids.
As with deregulation, the creation of new protective regulatory safeguards requires the completion of an arduous process, which is difficult to navigate even when attempted in good faith. Just ask the Obama and Biden administrations. The regulatory budget scheme this new order creates places yet another hurdle in the way of such progress — one that is entirely gratuitous and nearly insurmountable.
I have more to say about this executive order. Click to read Part Two.
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James Goodwin | February 3, 2025
Late Friday night, while news about Elon Musk’s apparent unconstitutional purge of the Office Personnel Management was beginning to trickle out, President Trump quietly announced his promised executive order calling on agencies to eliminate 10 existing “rules” for every new rule they want to institute.
Brian Gumm, Bryan Dunning, Catalina Gonzalez, Federico Holm, James Goodwin, Minor Sinclair, Rachel Mayo, Sophie Loeb, Spencer Green, Tara Quinonez | January 30, 2025
We at the Center for Progressive Reform cannot sit idly by and watch the Trump administration’s relentless attacks on the transgender community here in the United States and around the world. The Center’s staff condemns the Trump administration’s attacks on the transgender community — especially trans children.
Daniel Farber | January 29, 2025
In recent days, President Donald Trump has said that he won’t provide relief for the Los Angeles fires unless California changes its voting laws and its water regulations. He also suggested that he’d like to abolish FEMA entirely. The first of Trump’s proposals is likely unconstitutional. The second one is both a terrible idea and beyond his legal authority.
Daniel Farber | January 28, 2025
A sleeper provision in one of President Donald Trump’s executive orders attempts to revolutionize the way the National Environmental Policy Act (NEPA) operates and cut environmental review to a minimum.
Sophie Loeb | January 28, 2025
On December 11, 2024, in Roanoke Rapids, North Carolina, 40 folks attended the first annual rural clean energy convening co-sponsored by the Center for Progressive Reform and the Center for Energy Education. Attendees included FEMA representatives, USDA and other government agency officials, local residents, county commissioners, and energy policy advocates. The main topic of the […]
James Goodwin, Rena Steinzor | January 27, 2025
The U.S. Congress is back and the U.S. House of Representatives is already roiling, as exemplified by the lobbyists and pundits who trail members and staff through the halls and into their offices. Republicans are already desperate to regain momentum after tripping out of the starting gate, even astride their newly minted control of both ends of Pennsylvania Avenue—a “trifecta” in Washington lexicon. Many backroom negotiations are inevitable, and the idea that a massive legislative package will be easier to pass could run into the reality that members will want innumerable concessions to take tough votes. The process will bog down, and Republicans must find something else to do. Senator Mitch McConnell (R-Ky.) has already fingered the most promising possibility—killing Biden Administration rules under the Congressional Review Act (CRA). The CRA allows narrow majorities in Congress to pass “resolutions of disapproval” for recently issued final rules.
Federico Holm | January 27, 2025
If there were any doubts about the policy priorities of the second Trump administration, these have been swiftly clarified after the first barrage of executive orders (EOs) aimed at deconstructing environmental, scientific, and democratic safeguards. One of the most extensive EOs is titled “Unleashing American Energy,” which contains a wide array of actions aimed at boosting “America’s affordable and reliable energy and natural resources.” This is merely coded language for doubling down on an extractive model of development poised to pump, mine, and log every possible inch of American public lands. Unsurprisingly, it is also aimed at “unleashing” only some types of energy resources: fossil fuels.
Bryan Dunning, Federico Holm | January 22, 2025
Widely available clean drinking water is something that we usually take for granted. One of the main reasons is that the vast majority of the U.S. population has access to public water systems, which are in charge of providing safe drinking water to their users. However, in many parts of the country, particularly rural communities, people rely on private wells for sourcing their drinking water, which broadly lack regulatory safeguards for public health and well-being. This is particularly striking in Virginia, where 22 percent of the population relies on water supplied by a private well, with the share of private well use reaching upwards of 80 percent of the population in the Commonwealth’s most rural counties. As we explore in a new report, there is little comprehensive information on the distribution and severity of nitrate contamination in private well systems in Virginia.
James Goodwin | January 14, 2025
On January 15, the Senate Homeland Security and Governmental Affairs Committee (HSGAC) will take up the nomination of Russell Vought to be president-elect Donald Trump’s Director of the Office of Management Budget (OMB). Vought’s nomination lacks the potential fireworks of Pete Hegseth (Secretary of the Department of Defense), Robert F. Kennedy, Jr. (Secretary of the Department of Health and Human Services), or Tulsi Gabbard (Director of National Intelligence), but his confirmation hearing will arguably be the most important of all Trump’s nominees.