Regulatory delay across administrations

Editor’s Note: See Management of the Administrative State.

From: Brookings Institution

[Brookings] Editor’s Note: This report is part of the Series on Regulatory Process and Perspective and was produced by the Brookings Center on Regulation and Markets.

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Second, unilateral directives (i.e., written instructions given to agencies on how to implement the law) provide presidents a more direct way of reversing policy. They do not require congressional approval and can sidestep the collective action problems inherent in lawmaking. Making good on his promise to “eliminate every unconstitutional executive order” issued by Obama during his first year in office, Trump revoked 11 of Obama’s orders related to climate change, labor protections, and law enforcement. Presidents have long used unilateral directives to reverse the policies of their predecessors from the opposite party. This strategy, however, is not without its limitations. Threats of legislative or judicial retaliation, public backlash, and substantial transaction costs within the executive branch serve as deterrents to unilateralism. Furthermore, unilateral actions are less durable than other means of policymaking, given that subsequent presidents can easily rescind them with the stroke of a pen.

Lastly, presidents can reverse policies through the regulatory process. Shortly following his inauguration, Trump famously mandated that two regulations be repealed for every new one promulgated in his “2-for-1” executive order. While he successfully limited the development of new regulations, evidence suggests that this order did little to actually impose massive repeals of previous regulations. Rescinding a regulation is indeed no easy task—no easier than promulgating a new rule in the first place, given the action must observe the normal process of notice and comment under the Administrative Procedures Act and is subject to the same standard of judicial review. In short, presidents cannot repeal regulations for a blatantly political purpose; they need a reasonable justification. Carefully developing such a justification, complete with supporting evidence, is a time-consuming process that must compete with other agency priorities and is likely to take months or years to complete.

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