Sunstein on Regulatory Reform

Few people who served in the Obama Administration or are professors at Harvard Law School praise the Trump Administration for anything, but Cass Sunstein is commending the Trump Executive Orders on regulatory reform.  Sunstein writes:

The [new executive] order calls for the official designation of “Regulatory Reform Officers” and “Regulatory Reform Task Forces” within each department and agency of the federal government.

The reform officers are charged with carrying out three earlier executive orders. The first is Trump’s own requirement that agencies eliminate two regulations for every one that they issue. More surprisingly, the second and third come from Presidents Bill Clinton and Barack Obama. The Clinton order, issued in 1993, requires cost-benefit analysis of new regulations, along with approval by the Office of Information and Regulatory Affairs.

The 2011 Obama order calls for “retrospective review” of existing regulations, with the goal of getting rid of those that don’t make sense. By requiring adherence to the Clinton and Obama orders, the Trump administration has signaled a degree of continuity with what came before. That’s a good idea.

It is interesting how Sunstein frames these reforms.  Unlike the mainstream media, Sunstein emphasizes the continuity with the past.  I am sure that many right wing observers also doubt that the Trump Administration will have continuity with the Obama Administration.  But Sunstein makes the argument nonetheless.

I agree with Sunstein that there is much to be said for these task forces.  In fact, I myself advocated the enactment of a permanent administrative agency with the authority to repeal exist regulations.  I have also recommended that there be officers in each agency with the primary responsibility of identifying regulations that should be repealed, officers who would work with the deregulatory agency.

I hope that the Trump Administration can build on these executive actions and turn them into legislative reforms, such as creating the deregulatory agency.  But the filibuster rule probably stands in the way.

It no doubt took some courage for Sunstein to praise the Trump Administration in print.  But Sunstein does stand up for his principles.  By many accounts, he was not a terribly popular man in the Obama Administration, since he blocked various regulations by agencies such as the EPA.  Yet, he was able to accomplish much, because he was said to have the confidence of the President.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Paul Binotto says

    “It no doubt took some courage for Sunstein to praise the Trump Administration in print.” – It did no doubt require courage to praise the current Administration, the cynical notion (my own not the authors) aside, that Sunstein’s statement may purely be a method of attaching a present and future Progressive claim to a policy directive with current broad popular political support, by attaching it to past Progressive action.

    If action is a better indicator than words, the burgeoning administrative state, exceeded in size only by the vast array of policy regulations emanating from it over the period of the Clinton, Obama, and yes, Bush Administrations may be a better indicator of their (and their party’s) respective commitment to reducing regulation than anything they individually might have advanced by their words.

    Time will tell if the current Administration is any more committed.

  2. brad says

    Would it be possible or desirable to automatically sunset all regulations after 10 or 20 years unless they were not re-issued after notice and comment? I guess this would be an amendment to APA?

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