Trump’s regulation legacy — and what Biden will inherit

Since the Republican takeover of the House in 2010, Congress has largely gone dormant when it comes to policy making. As a result, regulations issued by the executive branch have become perhaps the pre-eminent policy-making tool for the federal government. It is a trend that started a half century ago, but the attention given to regulation has never been higher — and that attention is likely to remain high throughout the Biden administration.

When Donald Trump ran for the presidency, he talked more about eliminating regulation than any candidate since Ronald Reagan in 1980. Trump even claimed at one point that his administration would eliminate 70 percent of regulations. As he leaves office, one thing is fairly clear: the past four years have seen very little elimination of regulations from the books. 

The Trump administration did have one major deregulatory success, but it came — ironically — thanks to Congress. In the first six months of the administration, Congress repealed 14 regulations issued late in the Obama administration using a statute passed in 1996, the Congressional Review Act (CRA). The CRA allows Congress to bypass procedural impediments such as the filibuster when repealing regulations issued in the previous six months. These 14 repeals are not trivial, but they do represent a very small percentage of the total number of regulations issued during the Obama administration. 

While Trump campaigned on eliminating all regulation, it soon became clear that the focus of his regulatory policy was reversing the regulations of his immediate predecessor. And once the clock ran out on Congress’s ability to help him do so using the CRA, the Trump’s administration had to conduct these reversals on its own. In this endeavor, their success has been extremely limited.

To be sure, there are a few significant regulations from the Obama administration that Trump was successful in reversing and that may stay reversed. The courts have upheld much of the Federal Communication Commission’s repeal of the “net neutrality” regulation and the FCC has reaffirmed the remainder of that reversal. The courts themselves actually suspended the Obama administration’s “Fiduciary rule,” and then the rule was largely reversed by Trump’s Department of Labor.

But these reversals will likely be the exceptions.

The Trump administration largely rushed through the process of repealing Obama administration regulations — and in doing so, sloppily managed legally required steps such as considering public comment, and doing a thorough analysis of the reversals. As a result, many of the Trump Administration’s attempts to repeal regulations that were thoroughly justified and analyzed by the Obama administration have failed in court. 

The Trump administration’s last-minute rush to finalize further repeals is likely to suffer the same fate.

Midnight regulations are historically supported by poorer analysis than those regulations issued earlier.  This is true in any presidential administration. In an administration when even those earlier regulatory efforts were done poorly, one can expect that any lawsuits to stop the midnight regulations will also be largely successful.

The end result is a record of deregulation that is a mere shadow of the claims made by the Trump administration. In a report I co-authored with Natasha Sarin and Cary Coglianese, we found that the Trump administration actually issued at least as many regulations that impose burdens on the public as they eliminated (and many of those eliminated have been restored by the courts). We also found that the economic impacts of the Trump deregulatory efforts (in part because they were so limited) have been minor and likely made virtually no contribution to the pre-pandemic economic growth of 2017-2019.

Furthermore, the regulatory process that faces the Biden administration is likely to be identical to the one that produced large quantities of regulations over the past several decades. Even when under Republican control, Congress was unable to pass any statutes that would change the regulatory process. And the signature change to the regulatory process made by the Trump administration, the “two out one in” Executive Order is almost certain to repealed by President-elect Biden on his first day in office.

All of this means that President-elect Biden will take office in a regulatory world that is largely unchanged from four years ago.

The process for issuing new regulations will be largely the same as it has been for decades. The number of regulatory requirements faced by businesses and other entities will be virtually identical to what they were in 2016. And the biggest deregulatory efforts made by the Trump administration — such as the repeal of gasoline emission standards for automobiles and other environmental requirements, many of the burdens put in place on prospective immigrants, and attempts to undermine the Affordable Care Act — can be reversed by the Biden administration in its first year or two in office.

The Biden administration will have to spend some effort on these reversals (but not as much as if the Trump administration had been more effective). This time and resources will not be available to agencies to use in producing new regulations. But with an avowed commitment to combating climate change, expanding health coverage, and protecting American workers, the Biden administration should have the bandwidth to accomplish many of its regulatory goals.

Trump came into office hoping to turn back the clock on regulation; instead, his administration largely just froze the clock in 2016. With a few notable exceptions, the regulatory state that Biden takes over looks a lot like the one taken over by his predecessor. And — given that President-elect Biden is staffing his administration with considerable expertise in governance — we can expect a four year period in regulation that looks a lot like the four decades that preceded the Trump administration. In particular, President Biden should have plenty of opportunity to build on the regulatory legacy of the man he served as vice president.

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.