Magazine article The American Prospect

The War on Regulation: Under Trump, It's Open Season on Health, Safety, Labor, Financial, and Environmental Measures-That Protect People Who Voted for Him

Magazine article The American Prospect

The War on Regulation: Under Trump, It's Open Season on Health, Safety, Labor, Financial, and Environmental Measures-That Protect People Who Voted for Him

Article excerpt

A cornerstone of Donald J. Trump's presidential campaign was his declaration of war on regulation and the agencies that write it. He has promised repeatedly to get rid of 75 percent of rules now on the books. More recently, Steve Bannon, the chief policy guru in the Trump White House, defined the mission of the war more accurately as "deconstruction of the administrative state."

Ten days after taking office, Trump issued an executive order to accomplish his regulatory pledge by requiring agencies to kill two rules for every new one they propose, and has held a press event to announce further attacks almost every day. Another major tool is the legislative veto of so-called "midnight" rules issued by the Obama administration in its last five months in office and the passage of "regulatory reform" legislation that would make future rulemaking very difficult. All of these changes are a dream come true for corporate lobbyists. The oil and gas industry alone spends $300 million annually to lobby Congress, and fields three lobbyists per member.

Legislative vetoes are permitted under a 1996 law, the Congressional Review Act, enacted by the Gingrich Congress, aimed at thwarting President Bill Clinton's efforts to regulate prior to a presidential election that Republicans hoped to win. The first midnight rules to fall in the Trump era included a Securities and Exchange Commission requirement that oil and gas companies disclose how much they paid foreign governments for drilling rights-a provision of the Dodd-Frank bill enacted to detect illegal bribery; a Department of Interior prohibition on coal companies dumping mountaintop removal debris in streams; and a requirement that the Social Security Administration support gun control enforcement by sending to the attorney general the names of severely disturbed people receiving disability benefits.

As this article goes to press, two more repeals await Trump's signature: a rule that requires states to assess individual school performance and report those results to parents, and a rule developed by the Bureau of Land Management to give the public more say in whether to allow drilling, mining, and logging on 250 million acres of public land. Oil and gas interests, coal and other mining companies, and the gun lobby led the scrum, but electric utilities, federal contractors, bankers, payday lenders, and the chemical industry were not far behind.

The abbreviated Congressional Review Act process applies only to rules issued by the Obama administration after June 13, 2016. Unraveling older rules will be quite time-consuming, presenting deregulators with a fundamental dilemma. The most effective, long-lasting, and (not incidentally) transparent gutting of rules would require legislative revisions of the statutes that created the programs and gave agencies authority to write rules. But this approach would invite far stronger political backlash than obscure procedural changes that can be made to sound relatively innocent.

The House has already passed legislation written in this vein, called the Regulatory Accountability Act. A revised version is likely to be the main vehicle of deregulation used in the Senate. The bill would add several dozen steps to the rulemaking process, including a requirement that agencies call witnesses during rulemaking and allow opponents to cross-examine them. The regulatory process is already glacial. The Occupational Safety and Health Administration managed to complete just two significant rules reducing workplace exposures to hazardous materials in eight years, and one has midnight status.

Much of the 2010 Dodd-Frank Act has not yet been implemented because a process intended to be fair-minded invites industry delaying tactics. Additional procedural reforms will force underfunded agencies to abandon rulemaking. The only viable alternatives are case-by-case enforcement or inaction.

The House also passed the REINS Act (Regulations from the Executive in Need of Scrutiny), which would prevent any regulation from going into effect unless Congress acted affirmatively to approve it. …

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