Politics & Policy

A How-to Guide for Rolling Back Obama’s Regulatory State

(Dreamstime image: Jorgenmac)
Some burdensome regulations can be undone with a presidential order or congressional vote; others may take years.

One of President-elect Trump’s most encouraging campaign promises was his vow to tackle the regulatory state. For hard-working Americans, it’s essential that he keeps this promise.

The ever-growing regulatory state has harmed economic growth, job growth, and wage growth. Since 1980, regulations have cost the economy $4 trillion, or about $13,000 per American. During the Obama administration, over 600 major regulations have been issued, with a total cost exceeding $700 billion over his eight years.

But unraveling these regulatory burdens is not as simple as waving a pen or picking up a telephone. That’s why it’s critical that Trump and Congress adopt a workable strategy to repeal harmful regulations from the Obama era.

Because not all regulations are alike, the strategy must be twofold. First, Trump and Congress should identify all federal regulations that can be easily removed during the first 100 days. Then they must undertake the legislative and administrative process of undoing the more ingrained ones.

The first phase should focus on executive orders and memoranda issued under President Obama, which President Trump can simply erase on Day 1. The list of rules that could be overturned relatively easily, without congressional action, includes the proposed stream rule, which would further stifle coal mining jobs, labor regulations that increase the taxpayer cost of federal contracting, and the Paris Climate Agreement, which is estimated to cost each American family $20,000 of lost income by 2035.

For newer regulations, Congress must also pass resolutions of disapproval under the Congressional Review Act, to keep rules finalized in the last 60 legislative days from going into effect. This could include an estimated 199 proposed “major” rules — ones that are estimated to cost the U.S. economy over $100 million each. Examples of major rules include some aspects of Obamacare’s implementation and overtime regulations that could reduce workers’ hours. The advantage of this process is that the House and Senate need only a simple majority to pass a resolution of disapproval and send it to the president’s desk, a threshold that’s easily achieved following November’s elections. Nothing should stop lawmakers from halting these rules.

That’s the first phase. The second phase will require a more robust strategy.

Since many of President Obama’s most harmful regulations were promulgated and instituted in previous years, they will take longer to remove. These include pages of regulations issued under the Dodd-Frank law, the Clean Power Plan, net-neutrality Internet rules, and government control of private bodies of water. These regulations are already having dramatic harmful effects on American families and businesses, but they will be a heavier lift to undo.

First of all, Trump must direct agencies to stop defending these rules in courts. If a court determines that a regulation is unconstitutional — something the courts have already done many times in recent years with President Obama’s regulatory deluge — President Trump can simply let the ruling stand, effectively taking it off the books.

Essentially, agencies have to go through the same procedure to repeal a regulation that they do to implement one in the first place.

In cases where there isn’t a promising court challenge, the executive branch can still begin to undo rules — but it will be a lengthy process. Essentially, agencies have to go through the same procedure to repeal a regulation that they do to implement one in the first place. The administration must build the case for why it is undoing the rule. In the same way that the agency compiles hundreds of pages of evidence to prove the benefits of instituting a rule, an agency must also prove it has legitimate reasons to eliminate it. After agencies assemble their case for removing the rule, they must publish a notice of the change in the Federal Register, provide a time frame for individuals to comment on the rule, and publish the final change. Completing all these steps could take years in some cases.

The process is laborious, but that shouldn’t stop every agency head from setting it in motion. The very fact that it is so time-consuming makes it essential for agencies to start the process immediately.

But the buck doesn’t just fall on the executive branch. No matter what a rule or regulation says, Congress has the authority to pass a law repealing it outright. For years, however, lawmakers have delegated their power to unelected bureaucrats. Now Congress can reclaim its law-making authority. That’s why both chambers should bring one repeal bill after another to the floor. Whether it’s Obamacare or the EPA’s “waters of the U.S.” rule, or a myriad of others, Congress should prioritize floor time to vote to repeal every one of President Obama’s harmful regulations.

#related#Some Republicans may suggest that they don’t have the 60 votes in the Senate needed to overcome a filibuster and repeal regulations. But that doesn’t mean they shouldn’t try. Every lawmaker should be put on record, so the public knows where they stand on these job-crushing regulations. With tough races ahead in 2018, votes in the Senate will give the American people a clear-eyed view of which politicians actively want to stifle our economy. Democrat senators up for reelection in states that voted for Donald Trump will either stand up to their party leadership or face the consequences in two years.

President-elect Trump and the new Congress have their work cut out for them. But if they adopt a strategy that both halts pending regulations before they go into effect and rolls back the many others that are already hampering our economy, they will be on their way to unleashing the economic, job, and wage growth that has been far too meager for the last eight years.

— Andy Koenig is the vice president of policy at Freedom Partners Chamber of Commerce.

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