(Bloomberg View) -- In an early executive order, President Donald Trump told government agencies that if they issue one regulation, they must take two away. Four months later, we are seeing how the “one in, two out” rule will play out in his administration.
In effect, the federal government now has a regulatory moratorium (with modest exceptions), accompanied by episodic efforts to undo rules of the Obama era. The best projections are that the moratorium will continue and that the episodic undoing efforts will slow down.
It is still early, but comparisons of numbers from previous administrations help tell the tale. Start with George W. Bush. The records of the Office of Information and Regulatory Affairs, which acts as a regulatory clearinghouse, show that from his 2001 inauguration until the end of May of that year, agencies withdrew 130 regulations that had been under review by that office. That's a big number, but it was to be expected, since Bush was succeeding Democrat Bill Clinton, who had a lot of regulatory plans in the pipeline.
The more striking finding is that in the same period, Bush's OIRA approved 114 new regulations -- a little short of 30 per month. They were well-distributed across the national government. Twelve came from the Department of Health and Human Services, 17 from the Department of Interior, nine from the Environmental Protection Agency, and eight from the Department of Transportation.
There was significantly less regulatory activity in the first four months of the Barack Obama administration. Thirty-six regulations were withdrawn -- the Bush administration did not leave a whole lot to clear out. Obama's OIRA approved 93 regulations, a little more than 20 per month. They, too, were well-distributed across agencies, with the EPA leading the pack at 18.
Under Trump, the picture is radically different. Because the Obama administration completed most of its work on the rules it issued, only 25 regulations were withdrawn. The real news is that Trump's OIRA has approved just 15 regulations, a little shy of three per month. If that rate is continued, we'll see around 150 regulations in the entire four-year term, lower than the number the Bush administration issued in its first six months.
If we dig a little deeper, the picture gets clearer still. Two of Trump's 15 regulations come from the Department of Labor, and in a way they aren't really regulations at all. The first proposes to delay the effective date of Obama's controversial “fiduciary rule,” which requires retirement advisers to act in their clients' best interests. The second finalizes it. (The rule is now scheduled to go into effect in June.)
Nine of Trump's regulations, or 60 percent of them, come from just one agency: the Department of Health and Human Services. In general, these are not regulations imposing significant costs on the private sector. Several of them are routine efforts to implement federal law -- as, for example, by specifying reimbursement and payment guidelines for hospitals and nursing facilities.
That leaves just four regulations since Jan. 21, none of them environmental, health or safety rules of the kind that Trump apparently abhors. OIRA has approved exactly zero EPA regulations (none were submitted), and zero from the Department of Labor, aside from the delay of the fiduciary rule (the only submissions).
From the Trump administration's record so far, the obvious conclusion is that regulatory activity has nearly ground to a halt. One reason is that Trump's appointees don't want to do much regulating. Another may well be the “one in, two out” rule. Because of the processes mandated by the Administrative Procedure Act, it's complicated and time-consuming to repeal two rules, so the path of least resistance is to do nothing at all.
Expect most agencies to be eager to take that path so long as Trump is president, even if new regulations would produce significant benefits in terms of health and safety.
The more interesting conclusion is that to date, OIRA has approved hardly any rules that take away rules issued in the Obama administration.
To be sure, Congress has used the Congressional Review Act to disapprove a number of Obama-era regulations, issued in his last months, and some important rules have been suspended. In addition, Trump has issued several executive orders calling for reconsideration of various rules that Congress has not targeted. As a result, the attack on Obama's regulatory legacy is hardly trivial or insignificant.
But since Congress has gone after what it saw as low-hanging fruit, it's going to slow down, and in the overall scheme of things, there's hardly a “rollback.” After all, Obama's Office of Information and Regulatory Affairs allowed about 2,000 regulations to be finalized during his eight years (significantly fewer, by the way, than under Bush).
The overwhelming majority of Obama's rules -- probably well over 90 percent -- are going to stick. That's because the law requires them, because the private sector has adjusted to them, because they aren't burdensome, because their benefits obviously outweigh their costs, because they're saving plenty of lives, or just because they make a ton of sense.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Cass R. Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
I acted as senior adviser to the director of the Office of Management and Budget from late January until September 2009, when I was confirmed as administrator of the Office of Information and Regulatory Affairs.
To contact the author of this story: Cass R Sunstein at csunstein1@bloomberg.net.
To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net.
For more columns from Bloomberg View, visit http://www.bloomberg.com/view.
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