President Donald Trump has slashed a lot of red tape since taking office, but most governing takes place out of sight, according to a new report by the Competitive Enterprise Institute (CEI) that urges him to expose routine decisions in the bowels of the federal bureaucracy.
Wayne Crews, who wrote the report, told LifeZette that legislation gets a great deal of attention because elected representatives debate it in the open. Formal regulations also receive scrutiny because they must go through a formal rule-making process that includes public comments.
But some of the most important actions affecting ordinary America by government are not subject to any of those rules. Crews calls these guidance documents, policy statements, memoranda, and bulletins “regulatory dark matter.”
An example of this kind of governing are the instructions that the Department of Justice and Department of Education issued to public schools during President Barack Obama’s administration, mandating accommodations for transgender students in using bathroom and locker room facilities.
School systems across the country took action in response to the “guidance,” even though Congress had passed no law and the federal agencies had not even developed a formal regulation.
Other examples include instructions affecting how the Department of Labor treats independent contractors, requirements placed on franchisers, and rules covering the use of drones.
Even the Deferred Action for Childhood Arrivals (DACA) program, which granted quasi-amnesty and work permits to hundreds of thousands of young adult illegal immigrants, came to life through a memo published by the Department of Homeland Security — not by legislation or even formal regulations.
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Crews, vice president of policy at the think tank, urged Trump to issue an executive order requiring federal agencies to publish data on such rules and to notify Congress.
“That would be the next biggest thing that Trump could do on the regulation-streamlining front,” he said.
Trump already has made great progress on taming the administrative state, Crews said.
He pointed to the president’s executive order requiring the repeal of two major regulations for every new one.
A year after that order, the Office of Management and Budget (OMB) certified that the administration has exceeded that goal, implementing three new major regulations while repealing 67.
“There’s been no administration ever that’s cut as many regulations,” Trump boasted Thursday night at a rally in Minnesota.
Congress, using the Congressional Review Act, canceled 14 regulations that had been promulgated at the end of the Obama administration. But the “low-hanging fruit has been picked,” Crews said.
The cost of regulations is hard to estimate. Crews pegs the annual impact at about $1.9 trillion. George Mason University’s Mercatus Center has calculated that if regulations had been held steady at 1980 levels, the economy today would be $4 trillion larger.
Crews said the best approach would be for Congress to seize back some of the power it has ceded over the years to executive branch agencies that allow unelected bureaucrats to write their own rules. He noted that the House of Representatives has passed several reform bills intended to provide greater transparency and disclosure. But the Senate has not taken them up.
“Clearly, in this political environment, Democrats aren’t willing to give Trump any wins on regulatory reform,” he said.
“All we’re doing is playing in the sandbox in the Left’s great big administrative beach.”
Even the Congressional Review Act has offered only token resistance to the regulatory state, Crews said. He noted that while Congress last year killed 14 regulations that way, this compares with a total of about 300 regulations it could have stopped.
In the absence of legislation, Trump should do what he can administratively, Crews said.
Although an executive order demanding more transparency in the way agencies make rules could be overturned by a future president, Crews said it is likely to remain in place. Arguing against transparency would be politically problematic, he said.
Crews said that was the case when President Ronald Reagan ordered a cost-benefit analysis for major regulations. Subsequent presidents of both parties left that requirement in place.
Crews said he does not want to oversell what Trump could accomplish. Shining a spotlight on the informal ways government imposes rules on Americans could build support for reform, he said. But he added that a full-fledged effort by Congress and pushback by the courts are necessary to have a significant impact.
“All we’re doing is playing in the sandbox in the Left’s great big administrative beach,” he said.