10-for-1 Deregulation Executive Order Seen as Difficult in Light of Loper Bright
President Donald Trump’s executive order putting independent regulatory agencies under greater White House control (see 2502190075) should result in stronger regulatory analysis by those agencies and better evidence supporting their arguments, said George Washington University Regulatory Studies Center Director Susan Dudley. Speaking Wednesday at an administrative law panel discussion by the University of Pennsylvania’s Penn Program of Regulation, Dudley said the order also should lead to those independent agencies better coordinating their work across the government.
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But Dudley and Richard Revesz, director of the Institute for Policy Integrity at New York University -- both former White House Office of Information and Regulatory Affairs administrators -- dismissed the executive order requiring undoing 10 regulatory rules for each one proposed (see 2503120055) as gimmicky and vulnerable to being gamed by agencies. They said it's likely to have little actual impact.
Dudley said regulatory agencies will have particular challenges in rescinding or revisiting existing regulations since the U.S. Supreme Court's Loper Bright decision. She said the hurdle they will now face is showing that the law allows their new approach rather than the approach used in the past.
Revesz said he's skeptical that the current Trump administration will use good analyses in deregulatory proceedings, considering the first Trump administration had notably high loss rates when deregulatory actions were challenged in courts.
Gillian Metzger, a constitutional law professor at Columbia, said the first Trump administration talked about eliminating the administrative state but now has mounted a sustained attack on it via the dismantling of agencies, mass firing of employees and impounding funds that have been appropriated or obligated. She said the White House's "extreme claims" about its authority under Article II of the Constitution raise questions about how much it's likely ignoring legal advice it's getting about its actions from its own lawyers.