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rule, regulation, or guidance, it must identify at least 10 existing rules, regulations, or guidance documents to be repealed.”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.