Court challenges

In order to overturn a regulation, an agency often has to issue a new regulation. That process — which takes about a year, according to George Washington University’s Regulatory Studies Center — involves performing technical and economic analysis as well as soliciting public comments on the proposed action and responding to them.

Groups also can sue to block implementation of the new deregulatory action. And past performance doesn’t bode well for Trump.

Out of 77 major rules from his first administration that were challenged, Trump won 31.2% of the time and experienced a mixed outcome in 11.7% of cases, according to an analysis by New York University School of Law’s Institute for Policy Integrity. A major rule is generally one that has an annual effect on the economy of $100 million or more.

A difference between Trump’s first and second term, however, is the Supreme Court’s decision this summer to overturn the Chevron precedent that judges defer to agencies when interpreting and implementing unclear federal statute.

While the decision might seem anti-regulation, Bridget Dooling, a law professor at Ohio State University, argued it could hurt Trump’s deregulation efforts.

“It puts any administration that’s trying to come in and change things, whether it’s to make them more regulatory or less regulatory, to really explain why their new interpretation is better,” she said. “It really is adding to the workload of the executive branch to explain what they’ve done.”

Even if a court rules against a deregulation attempt, the attempt itself still can effectively block a regulation’s implementation.

For example, a panel of federal judges on the last full day of Trump’s first administration declared that his rule to unwind President Barack Obama’s Clean Power Plan for regulating power plant greenhouse gas emissions — which the Supreme Court already temporarily blocked in 2016 — was unlawful. But the research organization Brookings Institution noted in its 2022 analysis of Trump’s deregulation efforts that, while the court ruled against Trump, his actions did largely prevent Obama’s Clean Power Plan from taking effect.

Fudging the numbers

In guidance for implementing the “one in, two out” regulation policy during Trump’s first term, the Office of Management and Budget defined a regulatory action as the implementation of any significant rule (generally one that has an annual effect on the economy of $200 million or more). It provided a more expansive definition of what qualifies as a deregulatory action, including the elimination of any rulemaking, guidance documents and proposed Obama rules that were withdrawn by the Trump administration before being finalized.

Regulatory experts have criticized this classification system.

“The way that they ended up counting regulations versus deregulatory actions was kind of apples to oranges,” Potter said. “Regulations are kind of a funny unit. Like, what is a regulation? You can bundle a lot of policies into one giant regulation, or you can have lots of smaller ones. You can bundle or unbundle, so how you count that is very important.”

The Trump administration reported that between fiscal 2017 to 2020 agencies implemented 538 deregulatory actions and issued 97 significant regulations, which is a 5.5 to 1 ratio.

A 2021 paper titled “The Deregulation Deception,” however, casts doubt on the Trump administration’s claims about the effectiveness of its “one in, two out” regulation policy.

Looking at data from the Unified Agenda of Regulatory and Deregulatory Actions between 2017 and 2020, researchers from Yale University, the University of Pennsylvania and Rutgers University note that the Trump administration classified nearly 71% of its actions as neither regulatory nor deregulatory but rather as exempt or other.

“Much like golfers only counting the strokes that suit them, any administration seeking to proclaim to have issued more deregulatory actions than regulatory ones would have a strategic reason, at least at the margins, for not designating completed actions as regulatory,” they wrote. “After all, a ratio of deregulatory-to-regulatory actions could be inflated simply by eliminating rules counted as regulatory.”

The paper’s authors also found that, looking at all rules deemed significant, the Trump administration imposed twice as many regulations than it repealed.

“The problem is that when you take the lid off of what they actually did…it just does not overall paint a deregulatory picture,” Dooling said. “So it worked for their political purposes, meaning it gave them lots to talk about, but the results just don’t bear out.”

Slowing the pace of regulations

While experts dispute Trump’s claims that two or more regulations were repealed for every new one issued in his first term, they do agree that fewer rules were issued in Trump’s first administration.

“The ‘two for one’ served less to eliminate regulations than it slowed down the pace of new regulations,” said Susan Dudley, former director of GWU’s Regulatory Studies Center. “So when agencies had to find offsets, they were more likely to pause and think about whether regulation was necessary.”

An analysis by the Cato Institute, a libertarian think tank, in the summer of 2020 found that Trump issued approximately 40% fewer final regulations during his first two years in office than either Obama or George W. Bush.

American Action Forum, a center-right economic policy organization, reported in 2021 that the Trump administration added an annual average of $10.1 billion in net total regulatory costs to the U.S. in comparison to an annual average of $111 billion under Obama. Its analysis also found that, when removing independent agencies, Trump nearly reached $1 billion in net regulatory savings across his entire term.

Robert Weissman, co-president of the consumer advocacy organization Public Citizen, argued that blunted rulemaking is the true purpose of Trump’s “one in, 10 out” regulation policy.

“A ‘one in, 10 out’ rule is both nonsense and not going to be followed, but the signal that ‘we mean to end rulemaking’ or to suspend rulemaking for health and safety, environmental protection, worker rights, fair economy, I think they do mean that, and they’ve got the capacity to deliver on it,” he said.

Weissman also contended that Trump’s nongovernmental advisory entity tasked with cutting bureaucracy, which will be led by tech billionaire Elon Musk and former presidential candidate Vivek Ramaswamy, could become intertwined with his administration’s deregulatory agenda. Numerous federal investigations into Musk’s companies, as well as the billions of dollars they receive in government contracts, have prompted conflict of interest concerns about the Department of Government Efficiency initiative.

“When you connect this issue to the Musk-led project, it’s much less abstract and about regulatory orientation or ideology and much more plainly about doing favors for connected insiders and big business donors,” he said.

Initial revocations and staffing

When Trump and congressional Republicans are sworn in next month, they’ll have control of the White House and both chambers of Congress. As such, they’ll be able to use the Congressional Review Act to overturn by simple majority late-issued rules from Joe Biden’s administration. Trump in 2017 used the CRA to repeal 16 Obama regulations.

In addition, Dudley said that Trump’s administration will likely stop defending many regulations promulgated by the Biden administration that are currently being challenged in court.

“They could settle lawsuits and say ‘All right, we agree with the challengers. Let us go back to the drawing board and fix this,’” she said. “So that’s another way — short of going through the long notice and comment rulemaking process — to remove regulation.”

But the bulk of Trump’s deregulatory agenda will require substantial work and people to perform it, and many experts have argued that a lack of officials with relevant expertise was a factor that limited Trump’s effectiveness in eliminating regulations during his first term.

The authors of the 2021 paper noted “a shortfall of professional acumen and effective leadership within the Trump administration, exacerbated by vacancies in leadership positions.” Cato’s first recommendation for the Trump administration to better pursue deregulation was to fill empty agency leadership positions as soon as possible.

Dan Goldbeck, the director of regulatory policy at AAF, argued in a November blog that Trump’s plan to reinstitute Schedule F, which would strip civil service job protections for potentially tens of thousands of federal employees, could hinder his administrative agenda.

“The operational chaos that will almost certainly ensue at the agency level would delay the administration’s core rulemakings,” he wrote. “And, even if such an agenda ultimately proves largely successful, while the resulting agencies may be composed of more ideologically aligned personnel, the diminished levels of both sheer manpower and expertise may lead to fewer and less well-crafted rulemakings.”