Scholars argue that President Trump’s deregulatory agenda has not been successful in the long term.
In just four years, the Trump administration has rolled back more than 100 environmental rules, including those to reduce carbon dioxide emissions, reduce methane emissions, protect wetlands, preserve public lands, and more.
In a recent article, Stephen Johnson argues that while President Donald J. Trump’s short-term record of deregulation has been successful, his long-term record has not been.
President Johnson noted that President Trump has used executive orders, the Congressional Review Act (CRA), legislative rulemaking, and court-ordered moratoriums to overturn long-standing environmental regulations.
Some of these operations are quick processes with limited permanence. Your successor can easily cancel. And the Biden administration has done just that. When President Joseph R. Biden took office, he reversed many of Trump’s efforts, which shows how difficult it will be for the president to relax regulations more permanently, Johnson explains.
President Trump has often made executive orders central to his deregulatory agenda, often ordering the U.S. Environmental Protection Agency to repeal regulations, Johnson said.
Johnson explains that the president can quickly implement executive orders without the cooperation of other departments. But he points out that the president cannot change the law through executive order. They can only direct agencies to exercise their discretion.
For example, President Trump issued a ‘business stoppage’ executive order immediately after taking office. The order required all agencies to cease rule work and withdraw final rules that have not yet been published. federal register, which suspends rules that have been published but have not yet gone into effect. In many cases, courts have invalidated these suspensions, finding that the agency suspended the rules in a way that exceeded its authority.
The lack of procedural requirements for executive orders makes them attractive as a deregulatory tool, Johnson argues, but also ensures that changes can easily be undone by a new administration. Upon taking office, President Biden issued Executive Order 13,990, revoking nine Trump-era deregulation executive orders. He also ordered agencies to review more than 100 environmental rules, guidance documents and policies adopted during the Trump administration aimed at deregulating them.
Johnson argued that President Trump has had limited success using the CRA to ease regulations.
The CRA gives Congress the power to disapprove an agency rule and then prohibit the agency from adopting another rule that is “substantially identical” to the disapproved rule. Because Congress prohibits agencies from re-adopting rules, the CRA could provide more permanence than an executive order, Johnson says.
But the CRA has its own limitations, Johnson says. The CRA is effective only when the president and Congress are “united to pursue specific deregulatory goals,” Johnson says. The CRA also requires Congress to file a resolution of disapproval within 60 days of adoption of the rule. And the CRA requires 10 hours of debate in the Senate. each Disapproval resolution. President Trump used the CRA to repeal four environmental rules because of these requirements, even though Republicans had a majority in Congress when he took office.
The Trump administration also used legislative rulemaking to ease regulations, Johnson explains.
He says legislative rulemaking is the only tool that allows a president to unilaterally remove rules adopted through previous rulemaking. However, scholars have observed that the notice and comment process can take five years or more. Agencies must also thoroughly explain why they are making such changes, or courts will reject the rules as “arbitrary and capricious,” Johnson warns. He also points out that legislative rules are not law, and future administrations can repeal them in much the same way that previous administrations adopted them.
The Biden administration is now undoing many of the environmental rollbacks achieved by the Trump administration through legislative rules that courts have not yet invalidated. But the courts have been a steady source of overturning many of these legislative rules. Johnson emphasized that federal courts have upheld Trump-era environmental regulations in only about 20% of the cases that have been challenged. This contrasts with the historical rate of around 70%.
Additionally, the Trump administration relied on court-ordered suspensions to ease regulations. Many administrations order agencies to suspend rules that have not yet been published or take effect. President Trump went one step further and tried to suspend regulations already in effect, but he was largely unsuccessful because he did not comply with administrative law, Johnson noted.
Finally, President Trump has expanded the use of litigation holds as a deregulatory strategy. A stay of litigation is an order from the president asking the court to temporarily stop litigation over a specific regulation. President Trump has tried to halt certain actions under existing environmental regulations and roll back regulations limiting the use of suspensions, Johnson notes.
President Biden used the litigation holdup to overturn Trump-era rules. And where courts have previously struck down Trump agency rules, the Biden administration has withdrawn appeals of those decisions.
In other words, Johnson argues, the Biden administration used the same tools to undo President Trump’s deregulatory agenda that the Trump administration used to advance that agenda in the first place.
But given the U.S. Supreme Court’s less deferential stance toward the agency, Johnson predicts that future deregulatory presidents will have “deregulatory allies in the judiciary.” Scholars have also noted that the court’s judicial deference is “asymmetric.” This means that actions by agencies that increase regulation will be more willing to override, while actions by agencies that reduce regulation will be followed. Johnson argues that the court’s current makeup bodes well for a deregulatory president.
But all is not lost for environmental regulation advocates, according to Johnson.
He notes that lower federal courts appear to be taking a more favorable stance toward the agency. He also said that while President Trump has appointed conservative judges at unprecedented rates, President Biden has filled a significant number of federal judicial vacancies, marking another, perhaps longer, effort to undermine the Trump administration’s deregulatory legacy.
