Trump’s New Executive Order on Regulations: Pure Kafka

Another day, another act of madness.

On Monday morning, the President issued an order that completely undermines the way the government does business. Simply put, it requires agencies to target two regulations for elimination for every new regulation they adopt. If regulators need to implement a new rule, they’ll have to zero-out costs from at least two others. In such a way, Trump has reduced the process of government to an arbitrary form of arithmetic.

Drawing attention to regulation may seem bloodless and cold after last week’s sickening immigration order. But it’s important to understand what’s at stake with this new act of presidential bomb-throwing. 

Regulations are, among other things, the lifeblood of our public health, public safety, and environmental laws. They are what protect miners from the dust that causes Black Lung disease; they are what keep fecal matter out of our drinking water; they are how species on the brink of extinction are identified and saved. They are essential to banking, consumer safety, insurance, construction, and virtually everything else under the sun. They exist because Congress, in passing statutes, has to rely on experts for their implementation. Our laws will quickly become meaningless without them.

How will an agency determine which regulations will live and which will die? Reducing that decision to an abstract trade-off makes no sense. Telling the EPA that it will have to eliminate two regulations affecting our water, air, or health in order to support some urgent new action is like telling someone who needs eye surgery that she’ll have to give up a kidney and an arm to get it. The government this envisions is like something out of Kafka, where clerks measure their success in the amount of paper on their desks, oblivious to any human consequence.

To make matters worse, the new decree, like so many of Trump’s others, seems almost calculated to swell confusion. How can it be squared with the Administrative Procedure Act, which sets requirements for rulemaking and precludes arbitrary and capricious agency behavior? Does it apply to non-discretionary regulations as well as to discretionary ones? What happens when agencies, in meeting the order’s draconian budget requirements, effectively stop implementing rules that remain on the books? Making sense of Trump’s ill-conceived action could tangle up administrative law for years. 

Many other administrations have taken steps to reform the executive, some quite ambitious. But Trump, in his bull-in-the-china-shop way, has simply declared that 75 or 80 percent of existing regulations must go, with no consideration of their public benefit. Monday’s order is the first cut. Who knew the new president was such an anarchist?  

About the Authors

Michael Jasny

Director, Marine Mammal Protection Project, Land & Wildlife program

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