Professor of Political Science Marissa Golden recently took part in an American Bar Association panel on the topic of "Deregulation: Past and Present."
Golden, who wrote What Motivates Bureaucrats? Politics and Administration during the Reagan Years, compared the deregulation that occurred during the Reagan administration and current deregulation efforts by the Trump administration. In making her comparison, Golden focused on five factors that help or hinder presidents' deregulatory efforts.
- Unified vs. divided government
- The Congressional Review Act of 1996
- Judicial review
- The President’s cabinet and sub-cabinet appointees
- The role of career experts
Below is an edited version of her opening remarks:
Unified vs. Divided Government
In my opinion, one of the biggest constraints during the Reagan years was divided government. Reagan occupied the White House but the Democrats controlled one or both chambers of Congress. The reason that made a difference was that Congress was quite aggressive in their oversight of federal agencies and of deregulation efforts.
For example, Anne Gorsuch—Neil Gorsuch’s mother—was forced to resign as the head of the EPA because of her unwillingness to be forthcoming with Congress.
Today, with unified government, Congress has pretty much given EPA Administrator Scott Pruitt a pass. That allows him to deregulate however he sees fit with almost no pushback from Congress. Ditto for Betsy DeVos at Education and Mick Mulvaney at the CFPB.
The Congressional Review Act
In 1996, when Newt Gingrich was Speaker of the House, Congress passed a law called the Congressional Review Act (CRA). It was passed in response to the 1983 Chadha decision, which held that the one-house legislative veto was unconstitutional.
The CRA was a way around that. It provided a way for Congress to “disapprove” agency rules by joint resolution. The CRA was passed in 1996 but it was rarely used before 2017.
Since 2017, Congress has used the CRA 14 times to get rid of rules promulgated during Obama’s presidency. That has been a huge aid in Trump’s deregulation efforts and in his efforts to undo every policy promulgated by President Obama. Congress has used the CRA to overturn 14 of Obama' regulations. That didn’t happen during the Reagan years because Chadha was still the law of the land and because although Republicans controlled the White House, they never controlled both houses of Congress.
That said, the CRA is limited; it can only be used within 60 “legislative session” days of the publication of a Final Rule and we are now past that time frame. However, Republicans are looking for other ways to use it for older, previously unreported Rules and Policy Guidance documents.
The Courts
During the Reagan years, a frequent tactic was to rescind or revoke rules that had been promulgated during the Carter Administration or earlier. For example, the NHTSA revoked Carter’s air bag rule.
The Courts were an active check on these efforts and frequently—as was the case with the air bag rule—held that federal agencies had acted “arbitrarily and capriciously.” In my opinion, the current Administration’s deregulatory efforts have been even more arbitrary and even less evidence-based. So to me, the $64,000 question is how the Courts will respond.
Will they allow the Trump EPA, the Trump Fish and Wildlife Service, the Trump SEC to rescind all their rules? Or will they require some measure of evidence and some concessions to the pro-regulation commenters?
The Success of Deregulation Depends on the Appointees the President Appoints
Or does it?
Ronald Reagan appointed some pretty incompetent characters. To some extent, that hindered Reagan’s deregulatory efforts. But even under Reagan, it didn’t hinder them as much as you might think.
It takes a lot of expertise to develop a Rule but it doesn’t take much expertise to rescind or revoke one. We are seeing that in the current Administration as well. All it takes to undo Obama’s regulation is a stroke of their pen or—in Pruitt’s case—a stroke of his $130 silver pen.
So I don’t think that lack of substantive policy expertise on the part of presidential appointees slows down deregulation very much.
Career Civil Service
Traditional political science scholarship attributes vast power to unelected bureaucrats. As early as the late 1800s, the sociologist Max Weber asserted that their power was “overtowering” because of their monopoly on information. But if facts don’t matter, than neither do career civil servants—they are disposable and expendable. And Trump’s efforts to undermine the Civil Service/Pendleton Act of 1883 makes them even more vulnerable. Civil servants’ resistance was limited during the Reagan years but it’s virtually non-existent now. So there is no armed guard to stop the deregulators from advancing.
Conclusion
This leads us back to the third factor that I identified—and to my final comment—the only possible brake on Trump’s deregulation efforts is the Courts. The absence of civil service input and expertise will only matter if the Courts say it matters. The incompetence of appointees will only matter if the Courts say it matters. And ex-parte contact between appointees and anti-regulation interests will only matter if the courts say that the APA requires that all stakeholders have equal access to decision-makers.
