Trump Takes Credit for Killing Hundreds of Regulations That Were Already Dead
White House officials are touting cuts to regulations as one of their top achievements.
(Bloomberg) -- As the Trump administration nears its one-year mark, White House officials are touting cuts to regulations as one of their top achievements.
“In the history of our country, no president, during their entire term, has cut more regulations than we’ve cut,” President Donald Trump said last month. His Press Secretary Sarah Sanders puts the total at nearly 1,000, an astounding accomplishment for the notoriously slow-moving federal bureaucracy.
But government records—and in some cases the agencies carrying out Trump’s policies—tell a very different story.
For one thing, only a handful of regulations have actually been taken off the books. That’s due to laws that keep government policies from wildly swinging back and forth every time moving trucks show up at the White House.
Rather, the claim of victory in the war on regulation is instead based almost entirely on stopping proposed rules that haven’t yet made their way through the machinery of government. The White House says it has killed or stalled 860 pending regulations. It’s done this by withdrawing 469, listing another 109 as inactive and relegating 282 to “long term.”
A Bloomberg News review has found even those claims are exaggerated. Hundreds of the pending regulations had been effectively shelved before Trump took office. Others listed as withdrawn are actually still being developed by federal agencies. Still more were moot because the actions sought in a pending rule were already in effect.
The review’s findings undercut one of the signature assertions of an administration that has struggled to show progress on its major campaign promises. Efforts to rescind Obamacare faltered in Congress and a promised wall along the Mexican border remains unbuilt. But Trump and his aides proudly and repeatedly point to progress in cutting government red tape.
There is little doubt that the government under Trump has launched an aggressive assault on regulations governing everything from climate change to financial transactions, and policies restricting new ones are likely to have long-term impacts on government.
With the help of the Republican Congress, more than a dozen regulations enacted in the final months of the Obama administration were repealed this year with a little-used law called the Congressional Review Act designed to thwart 11th-hour rulemaking by an outgoing administration. They range from an Interior Department rule governing runoff from mines to a financial watchdog agency’s rule making it easier for consumers to sue banks and a measure to deter people with mental illnesses from being able to purchase firearms.
Some independent commissions controlled by Trump appointees have also taken steps to overturn actions taken by their predecessors. The Federal Communications Commission, for example, is expected to repeal open-internet rules know as “net neutrality,” though it is likely to face a legal challenge.
The administration has also dramatically slowed the adoption of new rules. The White House’s regulation-oversight arm, the Office of Information and Regulatory Affairs, had completed reviews on just 52 final rules that had bubbled up from the bureaucracy through Nov. 29, according to its records. President Barack Obama’s OIRA team had finalized reviews on more than four times that many during the same period last year.
“The president has more or less paused new regulations,” Kevin Hassett, chairman of the White House Council of Economic Advisers, said in an interview with Bloomberg.
But claims of sweeping deregulation have been overblown.
“Overstated, absolutely,” Stuart Shapiro, a Rutgers University professor who served as a White House regulatory analyst under Republican and Democrat administrations, said of the Trump administration claims.
Trump’s attempts to completely derail rules often have been abandoned in the face of lawsuits. The Brookings Institution, which is tracking regulatory actions under Trump, lists only 12 existing rules that were rescinded or rewritten since he took office, though it acknowledges the list is not complete. Those fell into rare procedural gaps that allowed them to be swiftly dispatched, such as overturning rules originally enacted on an interim basis.
“The claims about deregulatory accomplishments serve a political purpose that makes it appear as if more has happened than has actually happened,” Shapiro said. “In real policy terms, the types of accomplishments the Trump administration is touting will take years and years.”
A senior official in the White House Office of Management and Budget, who would not allow his name to be used, didn’t dispute any of Bloomberg’s calculations. But he said it wasn’t fair to call the administration’s claims inflated.
The official said the administration is taking steps across government to change how regulations are written and the list of pending rules is just part of that effort. It intends to release more data soon to bolster the progress on reducing regulation, he said.
Raj Shah, a White House spokesman, said in an email on Monday that “This article is based on out of date, inaccurate guesses and interim numbers from the Spring Agenda released five months ago.''
The administration's efforts are still a work in progress, said a White House official who asked not to be named. Even if pending rules weren’t killed, delaying them is an important step to reduce the regulatory burden on society, the official said.
Of the 469 regulatory actions the Trump administration said it had “withdrawn” this year, 42 percent were as good as dead already. Some 180 of them weren’t listed on President Barack Obama’s final agenda of upcoming rules, meaning there were no immediate plans to impose them. In many cases, there had been no activity on them in years, records show. Another 15 had been halted under Obama before Trump took office. At least three more were listed in error or were moot because the rulemaking was continuing.
For example, the Environmental Protection Agency abandoned its effort to regulate forest roads in July 2016—more than six months before the president took office—according to a notice in the Federal Register. Yet the withdrawal of that measure was counted as a Trump deregulatory action.
Also listed: an effort to create tougher regulations on mercury contamination that had seen no official activity since 2011.
A rule governing glider flights that was withdrawn Dec. 23, almost a month before Trump took office, was also listed, as were smokeless tobacco warnings that had languished since 2011 and a program to promote farmer’s markets, which was actually withdrawn in June 2016.
These cases are among those cited by the White House in its tally of pending regulations it has targeted. Bloomberg reviewed hundreds of the proposed rules and interviewed agency officials and experts to assess the list of 860 ones Budget Director Mick Mulvaney said the administration had “removed or withdrawn.”
The review found scores of examples that raise questions about the claims. For example, an attempt by the Agriculture Department to set standards for bio-engineered food was listed as “inactive,” one of the categories included in Mulvaney’s list. But the regulation is still being developed and the department plans to finalize it by next July, agency spokeswoman Amanda Heitkamp said.
In other instances, pending rules were added to the lists after years of inaction or were made moot by parallel actions.
After receiving a mandate from Congress, the Substance Abuse and Mental Health Services Administration began drafting regulations to make it easier for opiate addicts to get drugs during treatment. That measure was withdrawn in August—and counted among the 860, according to records.
However, the health agency earlier this year decided it had the power to allow the very same drug treatments without enacting a new regulation, it said in congressional testimony. Withdrawing the rule didn’t change government policy or reduce regulatory burdens.
Another pot of 282 pending regulations were designated “Long Term Actions,” which takes them off the front burner yet falls short of Sanders’s characterization that the administration “has gotten rid” of them. Again, in some cases agencies said they were continuing to actively develop the regulations in this category.
At the EPA—one of the corners of government where Trump is having some of the most profound impacts as he undoes climate change policy and makes it easier for power plants to burn coal—13 of the 20 pending regulatory actions the agency withdrew this year were either already dead or moot, according to federal data.
Similarly, almost half of all withdrawn rules in agencies under the Treasury Department—21 out of 45—weren’t among active rulemaking actions last fall. They range from Internal Revenue Service tax guidance on renewable energy bonds to how international trade data could be submitted to U.S. Customs and Border Protection. Many hadn’t been acted on in years.
Even among the pending rules genuinely withdrawn by the Trump administration, there are questions.
The U.S. Fish and Wildlife Service this year withdrew 42 pending regulations to protect endangered animals, reptiles or plants. But the actions are required by law and the agency said in a statement they were withdrawn due to a lack of resources and it is still assessing them.
One pending rule said to be sidelined—it was made inactive—was a closely watched action that arose out of complaints that whales, dolphins and other marine mammals held at zoos and aquariums were being mistreated.
The controversial effort had been on the government’s rule-making agenda since 2000, spanning three presidents in Democratic and Republican administrations prior to Trump. Early in 2016, after years of delay, the Obama administration issued a proposed rule to create additional protections for the animals.
Despite its new status as inactive, the Agriculture Department’s Animal and Plant Health Inspection Service is continuing work on the proposal and intends to finish its review as soon as this year, Administrator Kevin Shea said in a letter to the agency’s Inspector General in April.
The agency is reviewing the rule, but hasn’t abandoned the effort, spokesman Andre Bell said. “It’s not something that’s been removed,” Bell said.
The White House’s Office of Information and Regulatory Affairs in July published a list of almost 500 pending regulatory actions it classified as inactive. But the vast majority of those were put on hold under Obama and the current administration said it is unable to create a list of the pending rules it shelved, according to an official who asked not to be named. Some agencies declined to say when rules were designated as inactive, making it impossible to determine whether the action was taken by Trump.
The Trump administration has been more successful at changing the tone at agencies, particularly watchdogs that police Wall Street. The president now has his picks running most key financial regulators, and they are taking a friendlier approach to oversight.
For instance, Trump-appointed officials recently freed American International Group Inc.—an insurer that’s infamous for its role in the 2008 financial crisis—from the tough supervision imposed on companies considered too big to fail.
And Mulvaney, the administration’s budget chief, is now spending half his time leading the Consumer Financial Protection Bureau, an agency that regulates mortgages, credit cards and student loans. Mulvaney, who’s called the CFPB a “sick, sad” joke, has imposed a 30-day freeze on rules and is reviewing everything from the agency’s budget to pending lawsuits against financial firms.
There are also signs of less severe enforcement of existing rules.
The Labor Department finalized a regulation on exposure to toxic beryllium in the workplace days before Trump took office. While the agency has since begun the lengthy process of rewriting that rule, it announced in June it would simply not enforce the Obama standards.
Sanctions sought by the Commodity Futures Trading Commission fell to $413 million in the 12 months ending in September, a 68 percent decline from the same period a year earlier, the regulator said last month. Civil penalties levied by EPA for environmental violations through July 31 were 60 percent smaller under Trump on average compared to the first year of the three previous presidents, according to the non-partisan Environmental Integrity Project.
But tone and enforcement are elements that can be reversed by succeeding administrations, unlike ripping regulations permanently from the rulebooks.
The entire exercise of quantifying the impacts of halting or delaying rules that haven’t taken effect and may never become binding is dubious, said Philip Wallach, a senior fellow who follows regulations at the Brookings Institution.
More than 3,000 rules are in some form of development in the federal government, according to OIRA’s Unified Agenda. But it is an inexact wish list and it’s common for actions to linger on it for more than a decade or to simply disappear, Wallach said.
“There’s something a little artificial about their counting efforts at this point,” Wallach said. “It’s sort of cooked up.”
(Adds White House statement in 19th paragraph. A previous version of this story incorrectly described one of the rules eliminated through the Congressional Review Act in the ninth paragraph.)
--With assistance from Alan Bjerga Ryan Beene Jennifer A Dlouhy Anna Edney Todd Shields Ari Natter and Susan Decker
To contact the editor responsible for this story: Jon Morgan at jmorgan97@bloomberg.net, Jesse Westbrook
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