Trump’s record on regulatory repeals may only get worse

This week marks the conclusion of the period in which the Republican Congress and President Donald Trump can use the Congressional Review Act (CRA) to repeal Obama Administration regulations issued in the second half of 2016.

By some accounts the use of the CRA has been an unraveling of the Obama regulatory legacy. Indeed by the end of the week, it is likely that 14 Obama Administration regulations will be repealed using the CRA.

The number of CRA repeals is higher than many, including me, expected. Much of the credit (or blame) for this goes to Senate Majority Leader Mitch McConnell (R-Ky) who successfully managed the Senate calendar to allow for fourteen repeals while also confirming Cabinet nominees and a Supreme Court justice.

But before anyone talks about unraveling President Obama’s legacy, some perspective is also needed.

{mosads}In the period in which regulations were eligible to be overturned using the CRA, the Obama Administration issued approximately 270 significant regulations, including the 14 that were repealed.

Roughly 120 of these were not yet effective and hence easily delayed by the Trump administration. But this is a tool that all Presidents use to forestall the actions of their predecessors and therefore not really targets for Congress.

By this measure, the Trump Administration and Congress only disposed of fewer than 10 percent of those regulations in effect that were easiest for them to eliminate.

Now it gets harder for the Trump Administration. In addition to the 270 significant regulations the Obama Administration issued during the CRA period, they issued more than 1700 additional significant regulations during the eight years President Obama was in office.

And these will not be easy to get rid of. To do so, there are two choices. First Republicans could pass laws invalidating regulations. To do this, Republicans in the Senate will need to overcome the filibuster (the CRA allows the Senate to approve a regulatory repeal with 50 votes) and work with the House to pass laws to overturn the regulations.

This is unlikely given the broad support for many of these regulations. Or the Trump Administration will need to engage in a years-long process for each regulation. And even after that multi-year process, the repeal may be overturned in court.

None of this is to minimize the impact of repealing the fourteen regulations.

Many of these regulations protected public health or the environment. One repeal makes it easier for coal companies to dump waste into streams while another will allow federal contractors to avoid disclosure of labor violations when bidding for contracts. 

While there has been a great deal of attention to the cost savings to business from these rules, repeal would also lead to lost benefits to the public and the long-term economic impact of the repeals is likely to be damaging.

It is likely that these regulations were chosen for repeal not because of the net benefits of repealing them but rather because of political considerations.

But fourteen regulations do not a legacy make. The Obama regulatory legacy is based upon eight years of thousands of carefully considered policy decisions.

Many of these regulations were implementing the Affordable Care Act and the Dodd-Frank Wall Street Reform and Consumer Protection Act. 

If Congress is successful in repealing those statutes, then we can begin to have a conversation about the Trump Administration unraveling a legacy.

Until then the deregulatory rhetoric is mostly just rhetoric.

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.

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