The Trump Administration Has Issued the Fewest New Regulations In Decades. Does That Matter?
Raw counts of new rules added or pages in the Federal Register are a poor measure of deregulatory efforts.
Donald Trump ran for president promising to slash red tape and deregulate the American economy. According to some recent headlines in conservative media, he's been wildly successful.
"Trump issues fewest regulations ever," reads the headline from The Washington Examiner. "Trump Administration Issues Fewest New Regulations in History," blares PJ Media. The Washington Free Beacon was only slightly less boosterish, declaring: "Trump's Deregulatory Agenda Still Rolling, but Pace Slows Slightly."
All these posts rely on the work of Wayne Crews, a regulatory expert at the Competitive Enterprise Institute, who noted in a New Year's Eve blog post that the Trump administration had issued 3,367 rules in 2018, a slight uptick from 2017 but fewer than any other year going back to the 1970s (when the government first started recording such things).
The number of pages published in the Federal Register—a collection of all federal rules and public notices—is likewise only slightly higher than it was in 2017, which itself saw the lowest page count since 2001.
That might sound encouraging for fans of deregulation, but neither figure is a very good measure of how much regulation is actually occurring.
For one, the laws governing bureaucratic rulemaking require a new regulation to be written in order to get rid of an old one. This means, as Crews notes, that the "Federal Register and rule counts can both grow even in a deregulatory environment."
More importantly, not all rules are created equal.
A rollback of the Obama-era Clean Power Plan, for instance, means much more than the Coast Guard issuing a regulation about a New Year's Eve fireworks barge in federal waters. Similarly, the number of pages in the Federal Register counts not just regulatory commands but everything from background on existing rules to summaries of public comments on potential new ones.
Perhaps a better way to gauge Trump's deregulatory progress is to look at the Unified Agenda, a centralized collection of rules under development by some 60 federal agencies. Unlike the Federal Register, the Unified Agenda excludes most routine rulemaking that only effects the internal workings of federal departments, as well as most regulations relating to military or foreign affairs. Since 2017, most rules included in the Unified Agenda must be explicitly marked as either regulatory or deregulatory, thanks to Trump's executive order demanding that two regulations be cut for every new one added.
According to the Unified Agenda, the Trump administration has completed 236 explicitly deregulatory actions from January 2017 through the end of Fiscal Year 2018 in September, with 85 of these being ruled 'significant'—meaning the rule either has an annual effect of $100 million or more, or is deemed a significant departure from previous policy. That compares to 31 significant rules marked as explicitly regulatory.
This comes out to about 2.7 significant deregulatory actions for every significant regulatory one, which adds up to $33 billion in net regulatory savings since the Trump administration took office according to an October administration report.
That the balance of significant new rules is tilting toward the deregulatory side of things is encouraging, but some free market economists are still critical. Scott Sumner, an economist at George Mason University, argues that Trump's deregulatory progress must be weighed against his administration's restrictionist approaches to foreign trade, immigration, and investment.
Sumner also argues that some of Trump's deregulatory efforts could be harmful if they loosen restrictions on risky, externality-causing corporate behavior while leaving in place federal subsidies and protections that encourage said corporate risk-taking.
"Imagine removing all regulations on building homes right on fragile oceanfront sand dunes, while continuing to provide federal flood insurance to those homes," writes Sumner, arguing the result would not be a freer market but an equally distorted one where risk takers can rely on government subsidies to bail out their bad decisions.
Meanwhile, many of the Trump's deregulatory actions—even ones promoted as examples of his regulation-slashing success—were initiated by past administrations.
That last point is less an indictment of Trump than a demonstration of the limits of how much any executive can do unilaterally to pare back the regulatory state. Taking more impactful actions—say, by eliminating some of the agencies producing these rules—would require congressional action.
The current Republican-controlled Congress has showed little interest in wholesale regulatory reform, and the incoming Democratic majority in the House will want to move in the opposite direction. As long as that is the case, the executive branch's deregulatory efforts will continue to be, at best, marginal reductions.