For Trump regulations, it all comes down to November
With the crises of the pandemic, the recession and the nationwide protests, it has been easy to overlook one of the chief battlegrounds of the first three years of the Trump administration: regulation. For three years the administration has attempted (often unsuccessfully) to repeal some of the most impfactful regulations issued by the Obama administration. Despite the crises, these attempts have continued full throttle in 2020. Just a few weeks ago, the National Park Service reduced restrictions on hunting in Alaska.
The main reason that this continued deregulatory push has not garnered media attention is that there have been more newsworthy events dominating the political media landscape. One reason it should get more attention is that the eventual fate of any deregulatory initiative issued by the Trump administration from this point onwards (and possibly many deregulatory actions that have already taken place) will be determined by the November elections.
A potential Biden administration will obviously reverse direction in a wide variety of policy realms from the Trump administration. But few of the potential changes in a new presidency will occur with as much certainty and as much ease as the reversal of regulations issued by the Trump administration in the last seven or eight months of 2020. There are several reasons for this.
First is the Congressional Review Act (CRA). Brought out of a long slumber in 2017, the act allows Congress to repeal recent regulations without threat of a filibuster in the Senate. As of March, Majority Leader Mitch McConnell (R-Ky.) used the CRA to repeal 14 regulations from the end of the Obama administration. If the Democrats control the Senate and the presidency in 2021 (and retain control of the House), then a Democratic Majority Leader will follow likely McConnell’s road map for discarding regulations issued this year by the Trump administration. And because of the pandemic, more regulations are likely to be eligible for repeal.
Bethany Davis Noll and Richard Revesz have pointed out that the Trump administration has pioneered other tools that can be used by their successors. These do not require Congressional action. Many of the Trump administration deregulatory initiatives have been and will continue to be challenged in court. A Biden administration will almost certainly ask courts to hold those cases (and the Trump efforts) in abeyance while they ready reversals. Given the Trump administration’s abysmal record in the courts defending their regulations, judges may very well be sympathetic to these requests.
Finally, Davis Noll and Revesz point out that for regulations that are issued very late in the administration, the new president can follow the current administration’s lead and suspend the effective date for these efforts.
All of these tools make efforts to deregulate by the Trump administration this year very tenuous. In addition, even deregulatory efforts (such as the repeals of the Clean Power Plan and the Waters of the United States regulations from the Environmental Protection Agency) that have been completed will still be in various stages of litigation as Jan. 20, 2021, dawns. It is reasonable to foresee that a Biden administration will not argue in favor of repeals of regulations that were issued when Biden was Vice-President.
There is much at stake in the November elections. One of the clearest stakes is the fate of the attempts to loosen protections of workers, public health and the environment that the Trump administration has pursued. Typically, reversing regulations is hard but the sloppiness of the Trump administration will give a new administration many relatively easy-to-reverse targets.
While reversals on enforcement of regulation, any deterioration in the civil service that has occurred over the past four years, and any policy changes requiring legislation will take time, many Trump deregulatory initiatives can be reversed quickly.
From this point forward, every time you see news of (or panicked or jubilant reactions to) a new one, remember that its fate is on the ballot in November.
Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.