A Year-End Regulatory Report Card

With the close of 2018, the Competitive Enterprise Institute released a report asking “how is President Donald Trump’s regulatory reform project going”? Their answer: “Better than Obama, Bush II, and Clinton in terms of fewer regulations, but not as good as Trump’s own first year.”

By one measure, the record is very successful: the number of Federal Register pages reporting all kinds of federal regulatory actions was 68,308, or somewhat more than the 2017 number of 61,308 pages. This contrasts with the high water mark, 95,894 pages published in 2016. There were 3367 final rules published in 2018, and the Institute notes that during the 1990’s and the early 2000’s, the average number of rules published annually in the Register seemed to be on the order of 4500.

Going forward, deregulatory progress is sure to slow down. For one thing, the Administration will not be able to count on the use of the Congressional Review Act (CRA) to express the Congress’s disapproval of certain disfavored federal regulations. The Administration and the Congress made extensive use of the authority provided by the CRA in 2017 to jettison many federal regulations. It appears the last use of the CRA took place in May 2018, and now control of the House of Representatives has changed hands.

For another thing, the Administration’s deregulatory actions are frequently challenged in the federal courts, where the most common allegation made is that the notice and comment requirements of the Administrative Procedure Act have not been faithfully observed. Studies made by the Brookings Institution’s Center on Regulation and Markets and the Institute for Policy Integrity conclude that the Administration has enjoyed only a meagre measure of success in the courts in defending its deregulatory actions. To be sure, most of these decisions have been made by the lower federal courts and not the Supreme Court, but the litigation record does not presage a final vindication of many of these actions.

There are, of course, other tools at the disposal of the Administration, such as the reform of federal regulatory guidance policy. Certainly, the Administration will continue to push for more deregulation, but the road ahead figures to be long and arduous.