Strip away the wigs and makeup (that’s a metaphor), and on economic policy Donald Trump resembles the same tax-cutting, deregulatory Republican we’ve been inured to for decades. Every time you think Trump breaks the mold—like when he vowed on the campaign trail to allow Medicare to competitively bid for prescription drugs—it takes all of five minutes with drug company CEOs for him to suddenly become an evangelist for speeding up FDA approvals. This is Heritage Foundation conservatism, only a bit louder.
So you would expect that Trump’s signature executive order on deregulation would offer an important window into the next four years. But it’s actually nothing more than a meaningless paperwork generator, window dressing masking the real process Republicans will use to hack away at federal protections.
The headline news on the executive order claims that every new regulation adopted by a federal agency must be accompanied by the removal of two regulations. Other countries have similar “regulation budget” setups.
But there are all sorts of caveats. First of all, Trump has already promised that he wouldn’t accept any new regulations anyway. “If you have a regulation you want, No. 1, we’re not gonna approve it because it’s already been approved probably in 17 different forms,” he said during the signing ceremony. If zero new regulations get approved, zero need to be revoked.
Second, the executive-order text doesn’t call for revoking two rules for every new one. It just says those two rules must be “identified for elimination.” The cost to businesses of any new regulations must be offset (it’s unclear whether the benefits will be taken into account or how “costs” will be defined), but only “to the extent permitted by law.” In other words, the order respects “the authority granted by law to an executive department or agency,” referring to laws passed by Congress that direct agencies to write rules. If a regulation exists in the statutory code, it cannot be countermanded, regardless of this order.
In addition, all revocations of rules would still have to go through the Administrative Procedures Act process, which can take years and require agencies to come up with a plausible reason for revocation. An agency cannot ignore its mission or the plain text of the law to satisfy an arbitrary order. Lawsuits would almost certainly ensue if any agency trotted out this process to kill a rule.