By Cheryl Bolen
Aug. 3 — Republican presidential nominee Donald Trump is proposing to cut federal regulations by at least 85 percent, which would far exceed even the most ambitious Republican deregulatory efforts of the 1990s.
“We're going to cut down regulations between 85 [percent] and 90 percent,” Trump said Aug. 1 at a town hall meeting in Columbus, Ohio. “We're going to take care of regulations—we're going to have very, very big cuts in regulations,” he said.
It is unclear if Trump is proposing to cut each regulation, reduce the number of existing regulations or eliminate 90 percent of new regulatory activity. Requests for clarification by Bloomberg BNA to the Trump campaign were not returned.
But no matter what, a near total elimination of federal regulations would not only be unprecedented, but extremely difficult to accomplish under current law, several analysts concluded.
There are few ways to eliminate an existing final regulation: initiate a new rulemaking or enact a bill or resolution of disapproval.
To implement the laws passed by Congress, federal agencies conduct rulemakings according to the process laid out in the Administrative Procedure Act. Significant rulemakings often take years to complete, require months-long public notice-and-comment periods and a final interagency review by the Office of Information and Regulatory Affairs (OIRA).
To eliminate an existing regulation, an agency is required to conduct a new rulemaking, present its legal justification and gather public comment on its proposal to eliminate the rule.
Alternatively, the Congressional Review Act of 1996 established an expedited way for Congress to overturn a broad array of regulations through a joint resolution of disapproval (See previous story, 06/02/16).
Although the CRA was intended to address new rules issued by agencies, it explicitly contemplates that even after a rule is issued, Congress may still enact a joint resolution disapproving it.
But like any other legislation, resolutions of disapproval must pass the House and Senate and be signed by the president.
Similarly, Congress could pass a bill to repeal one or more specific regulations. Agencies would still have to initiate a new rulemaking, unless the bill expressly exempted the agency from doing so.
Amit Narang, regulatory policy advocate at Public Citizen, said rules still in process and not yet finalized are the most vulnerable.
At this point, any rules finalized before President Barack Obama leaves office would potentially be subject to reversal by the CRA, Narang said.
Or, if rules are not finalized by the time Obama leaves office, then the next president could tell agencies to withdraw them, he said.
This would entirely stop the rules, despite their being mandated by law, Narang said. “And that’s entirely within the authority of the new president, whomever that may be,” he said.
In Ohio, Trump singled out the energy industry, which is the target of many Environmental Protection Agency rules, as being particularly hard hit.
“That's how bad regulations are,” Trump said. “The energy business is being put out of business,” he said.
Trump said his administration would take care of the environment and safety, while still promoting strong economic growth.
Historically, however, the vast majority of rules remain even in the face of scrutiny by incoming administrations, said Sofie Miller, a policy analyst at the Regulatory Studies Center at the George Washington University.
Newly-elected presidents often find they cannot change the rules set by their predecessors without paying a considerable political price or confronting serious legal obstacles, Miller said in a research paper published in July.
Depending on how vigorously the new administration defends litigation over controversial regulations, it can influence court decisions, which may lead to regulations being overturned or remanded for reconsideration, Miller said.
The next president has two primary options for stopping the flow of new rules when he or she first takes office, Miller said.
One is preventing regulations from being submitted to the Federal Register until they are first approved by the new administration, while the other is to withdraw not-yet published regulations, Miller said.
Other tactics include extending the effective dates of controversial regulations to buy time for a new administration to consider its legal options, she said.
“More direct actions, such as revising or withdrawing already-issued final regulations, are procedurally difficult and extremely time consuming as they require the rulemaking process to begin again from scratch,” Miller said.
Doing so would require agencies to seek public comment on alternative approaches, develop an administrative record and issue a final rule based on that record, Miller said.
Then it would “most certainly” be the subject of litigation, with plaintiffs being able to point to the previous record to question the merits of the revised rule, Miller said.
To contact the reporter on this story: Cheryl Bolen in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Heather Rothman at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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