Did Trump Deliver on Deregulation?

D onald Trump promised to deregulate America. One of his boldest early moves was a “one in, two out” rule: for every new regulation executive agencies imposed, they had to get rid of two. And since executive agencies can act without Congress, deregulation was something the administration could pursue even after Republicans lost the House in 2018. Conservatives have often celebrated deregulatory efforts as a high point of the Trump administration, while liberals have decried them.

Now that Trump seems to be headed out the door, the time is ripe to take stock of where we really ended up. A new paper released by the Penn Program on Regulation looks past the administration’s big claims about how many regulations it’s killed to the underlying data, asserting that Trump has accomplished much less in this realm than he and his surrogates claim. Meanwhile, the Mercatus Center and the Competitive Enterprise Institute, both libertarian think tanks, have been keeping tabs on the numbers as well, providing a handy way to check the academics’ claims.

My takeaway from the data is this: There is definitely a “Trump effect” on regulation. He killed or withdrew some preexisting regulations, added new ones more slowly than previous presidents had, and left us less regulated than Hillary Clinton would have. Yet it’s more accurate to say that he slammed on the brakes, stopping regulation from moving forward, than it is to say he put the car in reverse and truly deregulated.

The most comprehensive measure in the new Penn paper is a simple page count of the Code of Federal Regulations. As the authors point out, the only outright decrease in this metric during the Trump era happened between 2017 and 2018, and was slight. But a Trump effect is still pretty clear. The president took a relentless upward trend, one that had proceeded unperturbed through the last three Republican presidencies, dipping only in the Bill Clinton years, and nearly flattened it.

The Mercatus Center echoes this finding, but by counting “restrictive words” in the Code of Federal Regulations rather than the total page count. And the conclusion is further buttressed by looking at counts of new rules. CEI, relying on the administration’s data, reports that “to the limited extent possible, agencies have largely abstained from issuing significant new regulatory initiatives,” and that “more significant rules have been removed than added.” Disputing those numbers, the Penn authors contend that Trump “completed far more regulatory actions than deregulatory ones once the full data are examined.” (See page six of the full report for the gory details of what the administration chooses to count and not count.) But even the Penn researchers concede that the administration distinguished itself from previous ones in this regard:

As a measure of overall output, consider that during the three years of the Trump Administration for which data are available (2017-2019), the federal government overall published an annual average of 3,204 final rules in the Federal Register. That marks a 12 percent decrease over the first three years of the Obama Administration, which averaged 3,628 rules per year (and which was itself a 12 percent decrease over the first three years of the George W. Bush Administration). In addition, the Trump Administration has also issued fewer new economically significant rules during its first three years than during this same period of time for other presidents. President Trump issued 107 economically significant rules during his first three years (2017-2019), while the average for the first three years of the prior five presidencies was 118 such rules.

The dropoff appears much more dramatic in the Mercatus Center’s count of significant rules (including those considered “significant” for reasons other than economic cost):

Of course, all of these are very big-picture looks at the data, and it’s worth recounting some of the administration’s major attacks on high-profile regulations. Trump rolled back the Clean Power Plan, gutted Obama’s attempt to impose dramatically higher fuel-efficiency standards on automakers, and remade the “Waters of the United States” rule. In 2017, using the Congressional Review Act, he and Congress killed 14 lesser-known Obama-era rules that could have cost the affected industries tens of billions of dollars. These are the kinds of things that really make a difference in terms of how businesses run, even as they still labor under countless other regulations.

At the beginning of this piece I noted that an upside of regulatory reform is that much of it can be done by a president without help from Congress. The flipside to this, of course, is that the same will be true in 2021: Joe Biden can undo the changes Trump has made this way as easily as they were made, though it may take a while. In addition, a lot of these rules are facing challenges in court, and the Trump administration does not have a great track record of bulletproofing its rules against legal assaults.

All considered, it’s clear that Trump reduced the rate at which regulations are growing, but also that he didn’t thoroughly demolish the regulatory state. For good or ill, he leaves us with fewer regulations than Hillary Clinton would have — though not many fewer regulations than we had before.