How deregulatory is the Trump administration?

Here is an email from a loyal, anonymous MR reader:

Critics of the administration’s much-ballyhooed deregulatory efforts argue that there’s not really that much there; they contend the White House and agencies have been tinkering around the margins (and helping out special interest groups), but not really addressing regulation’s economic cost. They argue there’s been virtually nothing done to address the bloated corpus of 100 years of accumulated federal regulation, and there’s been no legislative action to change regulatory processes.

The administration’s defenders and their fiercest critics alike argue that Trump has taken a machete to the regulatory state. But aside from naming a few rule changes here or there, they don’t offer much concrete support for their claim.

What’s the steel man case that Trump has broken the back of the administrative state? Some hypothes

1. They haven’t made things worse. After eight years of an administration that was seen (fairly or not) as hostile to business, just taking the boot off the throat of entrepreneurs is a major step forward. Small-business optimism is at pre-crisis levels. The last two years have seen the fewest economically significant final rules promulgated since 1990. Beyond formal rules, the administration has ended the abuse of “dear colleague” letters, guidance documents, and sue-and-settle.

2. Related to #1, there’s been no new legislation along the lines of Sarbanes-Oxley or Dodd-Frank that will take as long as a decade to get regulations worked out. That takes a lot of the uncertainty out of the system.

3. Enforcement has been curtailed. The administrative state is a threat because its enforcement is so capricious and subject to questionable extralegal adjudication. The Trump administration has responded by simply not enforcing many regulations. EPA inspections are down by half; CFPB is asleep at the switch. Enforcement heads are basically emulating Ron Swanson, for the better.

4. The 14 uses of the Congressional Review Act in early 2017 should in fact count as highly deregulatory; it was of course more than had ever been done with this tool in the past. Okay, so the regs in question weren’t yet final or hadn’t been in effect for very long. That’s just playing a baselines game; the bottom line is tens of billions of dollars of costs were cut over what would have been.

5. The record-breaking number of appellate judges appointed by the president and confirmed by the Senate will shift the judiciary to be more skeptical of regulators’ self-aggrandized power. Justice Gorsuch is champing at the bit to eliminate Auer and Chevron deference; overruling these precedents would be game-changing.

6. There’s been more taking place than you think. No, there hasn’t been a huge shakeup of federal departments, but those kinds of things are mostly for show anyway; federal power remains more or less constant, responsibilities just get shifted around. Benefit-cost analyses and regulatory impact analyses done by most agencies are sloppy at best and mostly just a Soviet-style effort to justify what’s already been decided, so they don’t capture the magnitude of what’s happening.

What has happened? The president has appointed people who take regulatory analysis seriously and understand opportunity cost. Some of the deregulation has been in areas most sensitive to the costs of regulation, like labor and energy. ACA individual mandate? Gone. HUD is taking steps to push housing deregulation at the local level; this has gotten almost no attention.

7. There’s more that would have been done but for the “deep state.” It’s a matter of public choice economics, not AM radio conspiracies, that regulators may not be enthusiastic about deregulating. For instance, Trump’s much-trumpeted two-out-one-in executive order for federal regulations was largely kneecapped by OMB so that over 90% of new regulations are deemed exempt from the order. Given inherent resistance to change (again, for perfectly understandable reasons, this is not a conspiracy), it’s amazing that anything has been done at all!


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