President-elect Donald Trump’s second administration will have a running start on regulatory reform thanks to the experience of his first. A few key moves will go a long way toward taming the administrative state.
No doubt Trump will begin by freezing in-progress rules pending review. Trump can improve on precedent by extending this order to the so-called “independent agencies,” such as the Federal Trade Commission. After all, it was Trump who was elected and is ultimately “responsible for the actions of the Executive Branch,” as the Supreme Court put it in Free Enterprise Fund v. PCAOB. Dissenting agency heads are welcome to resign or else be removed.
Similarly, Trump should end independent agencies’ exemption from the centralized regulatory review process administered by the White House’s Office of Management and Budget. That will improve the quality of their regulatory analyses and actions and ensure that they aren’t working at cross-purposes with other agencies. A related move is to revoke President Joe Biden’s order exempting regulatory actions imposing up to $200 million in annual costs on the economy from the regulatory review process and reinstate the long-standing $100 million threshold.
Biden also directed all agencies to “recognize distributive impacts and equity” in rulemaking—bureaucratese for embedding progressive ideology on race, gender, and more into federal policy. To Biden’s credit, these weren’t just words; his administration followed through by piling on diversity, equity, and inclusion policies at every opportunity, to the detriment of achieving government priorities. Trump should not only wipe the slate clean but direct officials at every level to prioritize the achievement of programmatic objectives, efficiency, and U.S. competitiveness.
More important than reversing Biden’s policy blunders is Trump’s positive agenda to reduce regulatory burdens. To begin with, Trump should reissue his pioneering 2017 executive order requiring agencies to repeal two existing regulations for each new one and to offset the costs of new regulations with repeals.
Even greater gains can be made by reviving and expanding a Trump policy that was repealed by the Biden crew before it came into effect. The Department of Health and Human Services’ “Sunset Rule” was the latest in a series of initiatives aimed at implementing retrospective review — that is, evaluating existing regulations for effectiveness and cost and revising or repealing the bad ones.
Previous efforts all failed because of a lack of follow-through. To avoid that fate, the Sunset Rule made the process automatic. It set most regulations to expire after five or 10 years unless a detailed, evidence-based review concluded that they should remain in force.
With four years of runway, there’s ample time to entrench sunset-based retroactive review across the government. Trump should direct every agency with rulemaking authority to adopt a version of the HHS rule with rolling deadlines that begin as soon as possible.
Finally, if Trump is to have any hope of rolling back the administrative state and achieving his other campaign promises, he’ll need a federal workforce that recognizes his authority as president. As the saying goes, “personnel is policy.” Trump’s response to bureaucratic resistance in his first term came belatedly in the form of a 2020 executive order reclassifying high-level positions out of the competitive civil service and into a new “Schedule F” classification subject to greater presidential control.
The federal workforce’s reported despair at Trump’s return to office indicates that the need for Schedule F is unchanged. What’s different is that Trump has the time to pursue reform. The best approach is to begin with an executive order that allows agencies to prepare and put would-be resistors on notice and then speed through notice and comment to a final rule within three to four months.
Trump has vowed to “make America safe, strong, prosperous, powerful, and free again.” He can succeed, but only if he takes on the bloated, controlling, and growth-sapping administrative state he’ll inherit from the outgoing administration.
Mr. Grossman is a senior legal fellow at The Buckeye Institute.
This article was originally published at www.washingtonexaminer.com
