A Fuller Picture of the Trump Administration’s Regulatory Agenda

This article appeared on The Regulatory Review on May 25, 2020.

  • Related Content

Now that President Donald J. Trump has entered his fourth year in office, we can assess his Administration’s regulatory strategy with the benefit of hindsight.

Last month, The Regulatory Review published two such performance evaluations. Amit Narang of Public Citizen argued that the President’s regulatory budget has been utterly ineffective; in contrast, Bethany Davis Noll and Richard Revesz of New York University School of Law argued that the Administration has been too effective in rolling back Obama‐​era rules.

Although both essays provide important insights, each is incomplete. With this response, I hope to flesh out a fuller historical record of President Trump’s regulatory agenda.

Amit Narang writes that President Trump’s “1‐​in‐​2‐​out regulatory budgeting has been an abject policy failure on multiple levels.”

For the most part, Narang is right. There is much less than meets the eye when it comes to the President’s signature deregulatory reform. President Trump, like every self‐​styled dealmaker sells the sizzle—“2 for 1!”—not the steak. And most of President Trump’s critics, including Narang, have focused on what the President is selling.

Yet there is more to the story. As President Trump and his detractors debate the sizzle over regulatory budgeting, his Administration has been preparing other steaks, and they are looking juicy.

Consider, for example, the Administration’s measures to stop agencies from abusing the Administrative Procedure Act’s (APA) exception to notice‐​and‐​comment requirements for guidance documents. Typically, agency guidance helps regulated parties by providing clarity. Sometimes, however, agencies treat the procedural exception for guidance like a loophole used to escape regulatory safeguards.

Closing this loophole started with a 2017 memo by then‐​Attorney General Jeff Sessions, which barred the U.S. Department of Justice from using guidance to “effectively bind private parties without undergoing the rulemaking process.” In January 2018, former Associate Attorney General Rachel Brand effectively extended the Sessions memo to all non‐​independent agencies.

In a 2019 order, President Trump built on these reforms by requiring agencies to “establish or maintain” on their websites “a single, searchable, indexed database that contains or links to all guidance documents in effect.” The President further directed agencies—within ten months—to establish notice‐​and‐​comment procedures for the issuance of all “significant” guidance.

Assuming agencies comply with the President’s directive, then the Trump Administration would achieve a significant overhaul of agencies’ use of guidance documents. That is a big deal—the APA’s guidance exception “may well be the single most frequently litigated and important issue of rulemaking procedure” in contemporary administrative law.

Judicial deference is another important area of administrative law where the Trump Administration has had a lasting effect. About a year ago, in Kisor v. Wilkie, Solicitor General Noel Francisco urged the U.S. Supreme Court to narrow deference for an agency’s interpretation of its own rules, under a legal tenet known as the Auer doctrine. The Court agreed, and Auer deference emerged “maimed and enfeebled,” in the words of Justice Neil Gorsuch. For this, the Trump Administration deserves credit for making a big assist.

Potentially the biggest reform is occurring behind the scenes on Capitol Hill. Last December, Deputy Attorney General Jeffrey Rosen announced that the Justice Department, for the first time, would make “modernizing and improving the APA…an important mission.”

The U.S. Congress wrote the APA almost 75 years ago, and its procedural provisions have aged poorly. Prominent scholars and the American Bar Association have called for the APA to be updated. These concerns animate the Justice Department’s push to amend the statute. Notably, the Justice Department played an important role in supporting passage of the original APA.

This is not an exhaustive account of all ongoing efforts by the Trump Administration to reform administrative policymaking—others include the U.S. Office of Management and Budget inviting feedback on regulatory enforcement and proceedings, and a U.S. Department of Transportation rulemaking that provides insight into the agency’s internal regulatory process.

Suffice it to say here, there is a lot happening apart from President Trump’s empty sloganeering on deregulatory ratios.

Indeed, Bethany Davis Noll and Richard Revesz argue that the Trump Administration pioneered three “instruments” for “aggressive regulatory rollbacks” that “are likely to result in a significant reconceptualization of presidential power.”

The first instrument is the Congressional Review Act, which establishes a streamlined legislative process to check new regulations. Noll and Revesz correctly observe that President Trump has used this law to sign 16 “legislative vetoes” of regulations, a dramatic increase over past practice. But why do Noll and Revesz impute these regulatory rollbacks to Trump? After all, it is called the Congressional Review Act; its nickname is the legislative veto. These measures are functions of Congress; they are not a presidential “strategy,” as claimed by Noll and Revesz.

The second instrument is the Trump Administration’s pursuit of abeyances in legal challenges to Obama‐​era rules to “help avoid the risk that a court will uphold” an Obama Administration rule. But is there anything new here? Early in the Obama Administration, agencies boldly employed “voluntary remands” to “avoid judicial scrutiny of Bush‐​era regulations,” as observed by Joshua Revesz in a brilliant article for the Administrative Law Review. By contrast, “the Trump Administration has declined to file voluntary remand motions on politically salient policies,” according to Joshua Revesz. Simply put, the Trump and Obama Administrations used different means—abeyances and voluntary remands, respectively—to achieve the same ends.

The third instrument is the Trump Administration’s use of regulatory suspensions to defer compliance of Obama‐​era rules while the current regime works on a replacement. Again, this tool does not seem to be novel. In 2010, for example, industry lawyers complained that President Obama’s agencies went “far beyond the traditional practice of a new presidential administration” by “unilaterally re‐​writing rules and approvals where the ink is long dry and the final rule is on the library shelf.” Back in 2010, the instruments were voluntary remands and—allegedly—sweetheart settlements with public interest organizations; today, they are “suspensions.”

If, as I suspect, the current Administration is not doing anything special, then it would follow that Noll and Revesz overstate their case when they posit that President Trump pioneered an ultra‐​effective template for regulatory rollback—supposedly so effective that “a single electoral victory will be insufficient to implement significant policy priorities through regulation.” Assuming, unlike Noll and Revesz, that there is no novel threat to a single‐​term president’s regulatory agenda, then President Trump’s legacy is on relatively safe ground.

Usually, regulatory reform is the sort of issue that Presidents take on in their second term, if at all. President George W. Bush, for example, announced his major regulatory agenda during his penultimate year in office. President Trump, by contrast, campaigned hard on the issue, and his regulatory push commenced from the start of his tenure. Having made reform a first‐​term issue, his Administration has had the wherewithal to insulate certain priorities—especially guidance reform—from a reversal should President Trump lose in 2020.