By Cheryl Bolen
Nov. 22 — Too many details are missing to assess President-elect Donald Trump’s proposed executive order that would require executive branch agencies to eliminate two rules for every one rule they adopt, a former regulator said.
“There are real challenges in implementing it,” said Susan Dudley, former administrator of the Office of Information and Regulatory Affairs at the end of the George W. Bush administration. Among them is the vulnerability of eliminated rules to legal challenges, she said.
In a Nov. 21 video, Trump said he had asked his transition team to develop a list of executive actions he could take on day one of his term.
“I will formulate a rule which says that for every one new regulation, two old regulations must be eliminated. It’s so important,” Trump said. No other details were provided.
It is easier for agencies to develop new rules than to look back and eliminate old ones, and this policy would provide that incentive, Dudley told Bloomberg BNA.
“I like the incentive features of it; I think that it’s going to need some serious thought to figure out how to implement it,” she said.
It is still unclear what policy Trump is proposing: whether he means, strictly, one rule in and two rules out—so that an agency could adopt a major rule and get rid of two small rules; or if he is taking into account the cost estimates of rules, Dudley said.
Trump has said he will issue an executive order, but it will be difficult to implement without legislation, Dudley said. Both adopting and eliminating regulations requires a notice-and-comment rulemaking docket with cost-benefit analyses and legal justification, she said.
Agencies could, at the start of a new rulemaking, begin to build a record for the regulations it wanted to remove, Dudley said. Presumably the rules would be of equal cost, but that depends on the way the order is structured, she said.
“The docket would have to survive litigation,” in that the agency would have to show that the rules it wanted to eliminate were no longer necessary to comply with the law, Dudley said.
So many statutes are so vaguely written that there is flexibility, Dudley said. Still, the statutory language that the agency relied on to issue the regulation will need to be reinterpreted in order to get it removed, she said.
“Then the courts would have those two dockets, one justifying the rule and one negating it,” Dudley said. “There are going to be legal challenges.”
Another question is whether the two rules would have to be completely litigated and off the books before the new rule could take effect. In the U.K. and Canada, which have one-in, one-out type regulatory policies for administrative rules, new rules can move forward on the promise that other rules are being eliminated, Dudley said.
At the White House, press secretary Josh Earnest said that the Obama administration had pioneered a successful effort to require agencies to continually look back at their existing regulations and modify or eliminate any that were outdated or no longer necessary.
The president also has spoken about how so much of governing may seem simple on the surface, but ends up being a lot more complicated once the consequences of actions are evaluated, Earnest said.
“I suspect that may be true in the context of the incoming administration’s consideration of repealing a range of regulatory actions,” Earnest said.
Amit Narang, regulatory policy advocate at Public Citizen, a public interest group, said it was possible that some type of regulatory budget legislation could be drafted next year to make real Trump’s pledge of one-in, two-out.
“That would be radical and dangerous,” Narang said.
In July 2015, Rep. Michael McCaul (R-Texas) introduced the One In, One Out Act (H.R. 3256). According to the bill’s summary, it would prohibit a federal agency from issuing a rule that imposes a cost or responsibility on a nongovernmental person or a state or local government unless:
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