WSJ: Trump’s Deregulation Project
From The Wall Street Journal, April 18, 2017.
Health reform may be on life support and tax reform uncertain, but one part of the Donald Trump economic growth project is succeeding: deregulation. The question is whether the President will now rev up the effort.
President Trump last week signed the 13th bill repealing regulations through a potent tool called the Congressional Review Act (CRA), which allows Congress to reject rules in a majority vote within 60 legislative days of publication. The 1996 law had previously been used only once, when Congress and George W. Bush nixed an ergonomics directive from the Occupational Safety and Health Administration. Two other repeal resolutions have passed the House and are pending in the Senate.
The list of rejects includes the Interior Department’s Stream Protection Rule, which would have eliminated a third of coal-industry jobs and usurped state authority over mining, for little environmental improvement. Awaiting Senate repeal is the Bureau of Land Management’s venting and flaring rule for natural-gas fracking. That aimed to reduce methane emissions, though they have already dropped more than 15% since 1990 even as U.S. energy exploration has doubled in a decade.
Other worthy targets: A Federal Communications Commission regulation that would have forced Comcast to abide by consumer privacy standards that Amazon and Google could ignore. Sen. Ben Sasse (R., Neb.) moved a bill to deep-six a teacher training mandate that features incentives for teachers to avoid struggling schools that need talented instruction most. The left is spreading panic about potential sludge rivers or killer toys, but these reversals merely restore the status quo of six months ago.
Congressional Review actions do not include Mr. Trump’s executive orders, which have directed agencies to reconsider the trillion-dollar Clean Power Plan, the Labor Department’s financial advice diktat known as the fiduciary rule, among many others.
Then there are the rules that agencies have delayed and may eventually scrap, from micromanaging ceiling fan efficiency to organic farming standards. Sam Batkins at the American Action Forum estimates that 15 delayed rules alone would require 10 million hours of paperwork. That time could be devoted to activities that produce wealth and innovation, and the main losers would be compliance lawyers.
The White House and Senate Republicans have said the 60-day review period for Congressional Review Act measures will end next month. But our colleague Kimberley Strassel has explained how the law applies to past rules that agencies failed to report to Congress as required. The same is true for “guidance” letters, such as the Education Department’s sexual assault “Dear Colleague,” that were imposed with the force of law without having to go through a public comment period.
The Administration could require agencies to work up lists of rules that were not properly reported, and send them up for rejection. Bonus: If Congress disproves a rule, the CRA stipulates that an agency cannot issue the same regulation again. That is much more powerful than perennial blue-ribbon regulatory commissions or a pledge to identify two old regulations to replace for every new one, which usually achieve less than advertised.
The minds behind this interpretation are the Heritage Foundation’s Paul Larkin and the Pacific Legal Foundation’s Todd Gaziano, who helped write the CRA. They are combing federal records for potential candidates. There appear to be hundreds, and here’s an example: The EPA’s interpretation of the Supreme Court’s Rapanos opinion in its waters of the U.S. rule, which has let the agency pummel property owners with tenuous claims about drainage into navigable waters.
Some Republicans may want to move on to other legislative priorities, and floor time is limited. But agencies could report a handful of rules at a time so as not to swamp the House and Senate as they consider the budget or Mr. Trump’s nominees.
Democrats will inevitably protest, but the point of the review act was to create an accountability mechanism for agencies that refuse to follow the law. And as with so much lately, Democrats can thank former Senate Majority Leader Harry Reid, who helped create the law and took credit for its passage in his farewell remarks last year.
Many Republicans campaign against regulations but then merely pump out rules at a slightly slower pace. So far the Trump Administration is a welcome improvement, rolling back more regulations than any President in history. Now we will see if he’s willing to deploy the full power of the law.