Trump's Options for Making Anti-Regulation a Top Priority

Trump is making anti-regulation a top priority, saying regulatory cuts are even more important than tax cuts. So we could be facing a frenzy of Deregulation that will be at least comparable to, and likely worse than, what we experienced under Reagan and Bush II.

There will be several pathways for Trump’s De-Regulatory push.

First, much of what the Republicans label “Regulation” was done through Executive Orders and other Administrative actions. Trump can undo many of these actions unilaterally.

Second, Congress can use the innocuously named Congressional Review Act, a holdover from Newt Gingrich’s Contract with America, to rescind any Regulation adopted in the last 60 Legislative days of the current Congress, meaning rules adopted since about May 30th. A Resolution of Disapproval under the Act requires only a Majority of both Houses, with limited debate, no Senate filibuster and no possibility of Judicial review. And here’s the kicker: A rule revoked under the Act cannot be reissued in “Substantially Similar” form, ever!, unless Congress allows it.

Third, Congress can override any Regulation through Legislation, and can Legislate to overturn all or parts of previous Statutes, such as the Dodd-Frank Wall Street Reform Act or the Affordable Care Act. Only the filibuster, if it isn’t abolished, will enable to block such efforts.

Fourth, the Trump Administration may undo Regulation on its own by issuing new rules to rescind prior ones. That would require the Administration to go through the full Rulemaking process, giving space for outsiders to work and block their De-Regulatory proposals. Trump’s Administration may also choose not to further defend Obama-era Regulations that are mired in ongoing Litigation. And Trump may choose not to enforce existing rules, or to enforce them minimally.

Fifth, Trump appears set to adopt an overriding policy of “One-In, Two-Out,” by which his Administration would have to rescind two rules for every one adopted. This makes no sense to people who understand the Administrative process. For one thing, most rules have to do with the normal functioning of Government. For another, the mechanism to rescind a rule is to issue a new, De-Regulatory rule. The idea that the number of rules matters or that we need fewer of them, per se, is incoherent. Nonetheless, it looks like we are going to face such a policy.

Sixth, with Republican control of both the Legislative and Executive branches, we may see a new push for Anti-Regulatory bills that have been fended off for the past five years. These generally add lengthy procedures to the Rule-Making process and/or further entrench corporate-biased “cost-benefit” analysis as the standard for rules.

Types of multi-pronged responses to address the above Trump's options:

- Messaging, rapid response, communications and quick-hit research will be crucial. We will need to hammer home the point that Deregulation is a giveback to corporate donors. And we must tirelessly expose how Trump’s extremist Anti-Regulatory agenda betrays his Campaign promises to aid the middle class.

- Expand the regulatory Coalition like the Coalition for Sensible Safeguards.

- Work with Congressional allies on any possible maneuvers to decelerate the Anti-Regulatory locomotive, including aggressive work for filibusters to block any Legislative rollbacks.

- Exploring every opportunity for litigation to block the Anti-regulatory agenda. Where specific rules are repealed, Public Interest Advocates will in many cases have an opportunity to challenge Agency action as arbitrary and capricious. There should be openings to sue in many cases to block unilateral Executive actions to roll back regulation.

A Trump Administration poses legal challenges beyond the composition of the Supreme Court. Litigation practice should engage actively in fighting the Administration’s harmful policy agenda. It will require going to Court in an effort to block harmful legislation, deregulation and regressive Executive action, in vast swaths of policy making: involving consumer protection, access to courts, money in politics, the regulatory process, financial reform and more.

We also will see a much-heightened role for longstanding Freedom of Information Act (FOIA) practice. Public Citizen intends to submit even more FOIA requests than we have in the past and to develop a more systematic approach to doing so. In an administration that shows every sign of susceptibility to scandal, no regard for ethical standards, procedural requirements, and complete alignment with the corporate agenda, I expect that explosive information can be obtained through FOIA.

DEFENDING OUR DEMOCRACY

We know we have to do a few things:

Fighting, in Congress and the Courts, any efforts to roll back the minimal Campaign Finance rules that remain, especially limits on contributions to candidates.

Connecting the Corporate Extremist Legislative agenda with Campaign contributions, to pound the message of corruption and insider deal-making.

Running Corporate campaigns urging key companies to disclose all political spending.

We also know something else: The nature of Democracy Campaigning in America has changed fundamentally with the Election of Donald Trump.

We can’t have a Functioning Democracy when people are fearful of participating in public spaces and engaging in civic acts.

There’s no Democracy when Muslim Americans are forced to, or fear they will be forced to, register.

There’s no democracy when Latinos and other recent immigrants fear they may be harassed and intimidated, or plucked up by the police and deported.











NYC Wins When Everyone Can Vote! Michael H. Drucker