Congress Looks to Permanently Slice Government Red Tape

While President Trump is taking a hatchet to regulatory burdens with his executive powers, Republicans in Congress are pressing for legislation that would make it easier to fight red tape even in future administrations.

Trump did his part this week, ordering an immediate freeze on pending regulations left over from former President Barack Obama’s administration and telling business leaders on Monday that he plans to reduce regulations by 75 percent or more.

“It’s out of control. And we’re going to make a very short process.”

“We want regulations, but we want real regulations that mean something,” he said, adding that environmental reviews, in particular, take too long. “It’s out of control. And we’re going to make a very short process.”

On Tuesday, the president used his executive authority to streamline the permitting process and reduce the regulatory burden for manufacturers, as well as expedite the process for “high-priority” infrastructure projects.

“If Obama had a pen and a phone, Trump has got a meat ax,” said Wayne Crews, vice president of policy at the Competitive Enterprise Institute.

The House already has passed three bills that aim to slow the growth of a regulatory state that House Judiciary Committee Chairman Bob Goodlatte (R-Va.) maintains imposes yearly costs of nearly $1.9 trillion on the economy:

• The Regulations from the Executive in Need of Scrutiny Act, or REINS ACT, which would require Congress to approve regulations imposing more than $100 million in costs on the economy.
• The Midnight Rules Relief Act, which would allow Congress to repeal in a single vote all rules finalized in the last 60 days of the Obama administration.
• The Regulatory Accountability Act of 2017, which would make it harder for federal agencies to justify new regulations.

Of the three bills, experts contend that the Regulatory Accountability Act has the best chance of attracting eight Democratic votes to avoid a filibuster in the Senate.

“It would be significantly more far-reaching a reform than anything the Trump administration could do,” said Sam Batkins, director of regulatory policy at the American Action Forum.

Just as easily as Trump can reverse Obama’s executive actions, a future president could undo any of his reforms, Batkins said.

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“All these can expire in four years,” he said. “The Regulatory Accountability Act likely would live on much longer.”

The bill combines a number of provisions that have passed separately in previous years. It would require agencies to choose the lowest-cost regulations that meet the objectives of laws passed by Congress. It would mandate more stringent cost-benefit analyses. It also would create additional steps for regulations costing more than $1 billion.

The bill also contains provisions mandating better notice and earlier opportunities for public comment. Batkins said public comment now often comes just before approval of the final draft, when it is too late to make substantial changes.

“The cake is more or less baked,” he said.

The push in Congress comes after the regulation-happy Obama administration flooded the Federal Register with a slew of new rules in the last few months. Crews said the administration passed 3,800 new rules in 2016, the most since 2009. The Register contained 97,110 pages of regulations as of Dec. 31, also an all-time record.

Crews said there also were 2,000 new regulations in the pipeline when Trump issued his moratorium.

Ever-expanding regulation is not inevitable, Crews said. He noted that Ronald Reagan cut the number of pages of regulations during his first term from 70,000 to 46,000.

One of the most significant provisions of the Regulatory Accountability Act is a change to the way that courts review legal challenges to regulations. Under a standard known as the “Chevron doctrine” created by the Supreme Court in 1984, courts defer to the federal agencies’ interpretation of laws as long as the proposed rules are reasonable.

“Wouldn’t you love that, if the courts deferred to you?” Crews asked.

The bill would override that, putting the government and plaintiffs on an equal footing. That would make it easier for a plaintiff to challenge regulations that go beyond the intent of Congress.

“This is a really big deal,” said Gregory Sidak, a Washington lawyer and economist who served the Council of Economic Advisers in the Reagan administration and was deputy general counsel at the Federal Communications Commission. “This bill would give the private sector very powerful leverage to not only slow the expansion of the regulatory state but also leverage to roll it back.”

Reagan required by executive order that the potential benefits of regulations outweigh the costs imposed. Sidak said Obama added “fairness considerations” to that cost-benefit analysis.

“Once you do that, you completely change it from some kind of economic assessment of costs and benefits to a political decision,” he said.