We continue our “Ask a Trump question” column, where legal experts address the many concerns that arose during the two-year presidential campaign cycle. This week, we focus on deregulation.
Can President Trump deliver on his promise to deregulate?
Donald Trump announced his “Contract With the American Voter” in which he outlined what he would accomplish in the first 100 days of a Trump presidency. Of those items, some were to be accomplished on the first day of his term of office, when his “administration will immediately pursue the following six measures to clean up the corruption and special interest collusion in Washington, DC: … THIRD, a requirement that for every new federal regulation, two existing regulations must be eliminated….”
The notion that regulations are burdensome is not new, and several administrations, including the Clinton administration, have attempted to address the issue. Regulations are often portrayed as undermining the free market and interfering with economic growth. Trump’s two-for-one proposal is also not new. Canada adopted the One-for-One Rule last year, requiring ministries to revoke one regulation for every new regulation. The “one-in, two-out” rule was adopted in the United Kingdom in 2013. The success of either program remains unclear.
Equally unclear is whether Trump can actually require agencies to comply with this demand. Agencies are not necessarily directly accountable to the president. Some agencies, like the Federal Election Commission, are completely independent of the president. Other agencies are subject to congressional mandates as well as presidential direction. If Congress requires an agency to adopt certain regulations, neither the president nor the agency can ignore this requirement.
Indeed, agencies have been sued for failing to adopt regulations. For instance, the Clean Air Act (CAA) requires the Environmental Protection Agency (EPA) to set emission standards for “any air pollutant” from motor vehicles or motor vehicle engines “which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.” In 2003, under President George W. Bush, the EPA declined to set greenhouse gas (GHG) emissions standards for vehicles.
Several states, including California, brought suit against the EPA, arguing that the CAA mandated that the regulations be adopted. The Supreme Court, in a 5-4 decision, ruled that the agency could not avoid its authority to regulate green-house gases that contribute to global climate change unless it could provide a scientific basis for its refusal. In 2010, new regulations were adopted.
Even if an agency is not required to issue certain regulations, it is time-consuming and difficult to repeal regulations. First, an agency must follow a specific process, allowing for public notice and the opportunity to comment on the proposed repeal. Depending on the complexity of the proposed repeal, this process could take years to complete. Second, an agency must have some basis for repealing a regulation. It must establish why a rule deemed necessary in 2010, is no longer necessary in 2016. Courts have not accepted “the president told me to” as a basis for repeal.
In the end, while Trump may want to roll back regulations — which is a noble cause — his ability to do is not absolute and may run afoul of Congress and existing law. It is a promise he is unlikely to be able to keep.
James Scafide, who primarily teaches business associations at the Santa Barbara and Ventura Colleges of Law (COL), is principal of the Scafide Law Firm, a full-service law firm focusing on business law and located in in Santa Barbara.
Established in 1969, COL, an accredited nonprofit institution, was founded to expand opportunities and broaden access to legal education. For more information, visit www.collegesoflaw.edu.