A regulatory agenda for Trump’s second term

President Trump has made rolling back regulations a hallmark of his administration. At a July White House event, Trump even boasted that “No administration in history has removed more red tape more quickly to rescue the economy and to protect the health of our people.” All told, the administration claims its efforts to unwind harmful rules have saved the economy $220 billion, or more than $3,100 for every American household.

As November draws near, Trump’s regulators should be preparing for a continuation of the program. At a minimum, a second-term agenda should include making it easier to unwind unnecessary agency regulations from years past and institutionalizing analytical improvements the administration has introduced throughout government.

Trump officials can also look for ways to lock in regulatory reforms that can carry into a potential Biden administration.

One of the most important lessons of the Trump years is that it is simply too hard to undo existing federal agency regulations. The administration’s track record on deregulation is impressive, especially relative to the George W. Bush and Obama administrations, which were heavy regulators. But Trump has mostly succeeded at slowing the pace of new regulatory activity. The stock of existing regulations — those that have piled up over decades past — is virtually unchanged since Trump took office.

This should surprise no one. The Administrative Procedure Act process to create new rules was intended to lock in existing regulations, making them hard to undo. At some point, however, technology evolves, the business landscape changes, and regulations eventually outlive their usefulness. In other words, regulations written for landline telephones make little sense when everyone has an iPhone in their pocket.

This is why a top Trump second-term priority should be to set up a system of sunset provisions, or automatic expiration dates, for rules. This will be essential for ensuring that rules stay modern, up-to-date, and efficient. The president could even issue a mandate unilaterally by following the lead of Florida Gov. Ron DeSantis, who in November of 2019 wrote an order to agency heads, directing them to build sunset provisions into their rules going forward.

As far as the existing stock of rules, these should be sunset as well — with some possible exceptions and perhaps not all at once. Idaho Gov. Brad Little had the ingenious idea of ordering agencies to repeal their rule chapters on a staggered basis (again, through an executive action). Chapters can be replaced, even largely in the same form, but not without going through the scrutiny that new regulations receive, including comments from the public and economic analysis.

To ensure an aggregate reduction in the regulatory burden, Trump should set an explicit goal. Last February, Oklahoma Gov. Kevin Stitt set an ambitious across-the-board reduction target of 25 percent. Trump could follow suit, say by setting a roughly equivalent goal of removing 50,000 pages from the Code of Federal Regulations.

In addition to these changes, Trump should look to institutionalize the improvements his administration has already made. Improved economic analysis has been one of Trump’s more potent reforms to-date. Although executive branch regulatory agencies have been required to produce economic analysis for decades, the “analysis” typically produced is more of a marketing gimmick to promote rules than an objective evaluation of their consequences.

This has started to change, albeit at a snail’s pace. Trump’s Office of Management and Budget has begun producing annual accounting statements under an executive order that established the first formal budget for federal regulations. Those accounting statements, while far from perfect, at least make an attempt at evaluating rules based on their opportunity costs. The administration should be working hard to make this analysis a permanent, and more central, part of agency rulemaking.

Of course, Trump’s poll numbers, and the public’s general disappointment in the government response to the coronavirus, make a Biden win in November a real possibility. In that case, administration officials should still be looking for ways to lock in some of the many improvements from the Trump years. Trump’s EPA is currently working on finalizing a self-binding regulation that would commit the agency to a higher level of analytical rigor for its Clean Air Act rules. Other agencies should consider following suit.

There’s no doubt the Trump administration should be proud of its regulatory accomplishments. However, there is still a long way to go. At last count, the Code of Federal Regulations contained nearly 186,000 pages, and what passes for “economic analysis” from federal agencies remains closer to religion than science. It’s far from clear who will prevail in the 2020 election, but whatever happens in the coming months, the Trump administration should be creating a roadmap for 2021 and beyond.

James Broughel is a senior research fellow with the Mercatus Center at George Mason University. Follow him on Twitter @JamesBroughel.