President-elect Donald Trump vowed, in his campaign, to make the slashing of federal regulations a “cornerstone” of his administration. He suggested that as many as 70 percent of regulations “can go.” The top of Trump’s “to go” list is probably the Environmental Protection Agency’s Clean Power Plan, a regulation – the country’s central effort to combat global warming – that would cut the power sector’s carbon emissions, in part by reducing the use of coal.
Trump’s proclamations indicate he needs a primer on regulations. The government did not adopt a rule like the Clean Power Plan with just a stroke of the president’s pen. Enacting such a regulation is an elaborate process that involves extensive, careful fact-finding and the evaluation of policies based on a full public record. It can take years. Undoing or modifying a regulation involves the same kind of process and can also take years.
For example, in the leading judicial case on this subject, the Supreme Court considered and rejected an effort by the incoming Reagan administration in 1981 to nix a regulation on seatbelts and airbags that had taken the highway safety agency years to adopt. President Ronald Reagan came to office making promises similar to Trump’s and rescinded the safety rule.
The Supreme Court reversed in Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance. The court reviewed the lengthy and careful consideration that went into developing the regulation. To undo it would take the same process – the lengthy developing of factual and legal support, full-scale open comment and a non-arbitrary rationale to rescind the rule.
While he’s boning up on the lawful process for repeal, Trump should also learn about public- and industry-established reliance. Take post-2008 regulations on financial reform, which were designed to prevent the big banks from behaving rashly. These regulations require banks to have “living wills” in case of dissolution and prohibit in-house trading (the “Volcker Rule”), among other measures.
The financial system has adapted to these rules. It has lived with them and adapted its business model to work under them. This has strengthened the banking system. It would be as hard, maybe harder, to undo these prudent rules as it was to establish them in the first place.
In 2009, the incoming Obama team similarly pledged to review Bush-era rules. But of the more than 4,500 proposed or final Bush regulatory actions, President Barack Obama repealed just 74 in his first nine months, of which only 34 were final rules.
Many of the most significant rules concern health and environmental matters and cannot be repealed without taking health considerations into account. An example is the ozone rule, which sets the allowable level in air of ozone, a harmful pollutant, at 70 parts per billion. Although industry vocally opposes the rule on cost grounds, it responds to an enormous public-health concern. The regulation cannot be legally repealed or weakened without a full administrative process addressing that health concern.
Trump may imagine that the Republican Congress could furnish a way of getting around the need for an elaborate administrative process to repeal each regulation. After all, the Republican House could pass a bill slashing large numbers of rules, a majority of the Republican Senate could agree and Trump could sign the bill into law.
However, Trump should anticipate that such a rash effort would result in an immovable filibuster in the Senate. There are 48 Democratic senators, and it takes only 41 to preclude cloture and to block passage. A wholesale assault on the array of regulations for health, safety and the environment would unify the resistance in the Senate.
It will take all of Senate Majority Leader Mitch McConnell’s skill and resources to push through even limited changes to the Dodd-Frank consumer-protection law. Nothing could move to passage a bill that slashes large numbers of major health, safety and environment regulations.
Some say that if the Democrats resist, McConnell could perform the “nuclear option” and end the process of filibustering in the Senate. But the Kentucky Republican is unlikely to take that momentous step. The filibuster has been vitally important to the Republican Party many, many times. McConnell would be loath to end a process that has been so treasured and depended upon by his own party.
So if President Trump wants to take on even just a few major regulations, he should be prepared to learn the law – and to cultivate patience.
Charles Tiefer is a professor at the University of Baltimore School of Law and the author most recently of “The Polarized Congress: The Post-Traditional Procedure of Its Current Struggles.” He can be reached at [email protected].