A friend and loyal reader from Facebook (one of half a dozen, maybe less!) posted the following in response to my little blurb on the 2 for 1 cuttings in the CFR forest:
This idea came from the Canadians. When I first heard about the Canadian 2for1, it sounded great. Then, I read that they had the caveat “2 regulations of equal or greater impact”. Well, right there, is wiggle room for administrators. There must be hundreds of thousands on the books, some of them perhaps dealing with standard Conestoga wagon sizes. Not sure if Trumps EO contains this caveat.
Not, that I’m against the idea. A long time ago, I advocated for capping city regulations at (say) 200. You add one, and remove one. So think carefully.
Thanks, Pat! Great points, all. I didn’t look into the Canadian angle (the land of Maple and Hockey scares me…). I know Sen. Mark Warner of Virginia (a DEMOCRAT, for some of my other FB peeps) essentially proposed the exact same thing a few years back. This Order, which I’ll get to in a second, is ostensibly aimed at two things: easing the burden on businesses and citizens, and; controlling the admin budget.
The White House.
Pat nailed it with the “wiggle room for administrators” part. That’s the name of the game in quasi-legislative admin law land. When I practiced law, I batted 1,000 in regulatory cases (hearings and litigation). Never lost a case. Federal, state, and local. 100% wins.
How? Because the entire system is bullsh!t. And no-one knows what the hell any of it means. And because I just happened to be especially good at that type of BS. Just say random things, reference a reg., and sound authoritative.
The people in charge of the agencies make a living wiggling around like that. They literally make this crap up as they go. By the way, 200 is nice, but I would cap the federal regs at 0. At least insofar as they apply to the people. I suppose they have copious pages of internal operating procedures. I don’t care how they schedule desk duty for signing for the Fed Ex man. Their business. It’s our business I worry about. And I think Trump shares the sentiment. His Order (in full):
Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs
– – – – – – –
REDUCING REGULATION AND CONTROLLING REGULATORY COSTS
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Budget and Accounting Act of 1921, as amended (31 U.S.C. 1101 et seq.), section 1105 of title 31, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. Purpose. It is the policy of the executive branch to be prudent and financially responsible in the expenditure of funds, from both public and private sources. In addition to the management of the direct expenditure of taxpayer dollars through the budgeting process, it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations. Toward that end, it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.
Sec. 2. Regulatory Cap for Fiscal Year 2017. (a) Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.
(b) For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).
(c) In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law.
(d) The Director shall provide the heads of agencies with guidance on the implementation of this section. Such guidance shall address, among other things, processes for standardizing the measurement and estimation of regulatory costs; standards for determining what qualifies as new and offsetting regulations; standards for determining the costs of existing regulations that are considered for elimination; processes for accounting for costs in different fiscal years; methods to oversee the issuance of rules with costs offset by savings at different times or different agencies; and emergencies and other circumstances that might justify individual waivers of the requirements of this section. The Director shall consider phasing in and updating these requirements.
Sec. 3. Annual Regulatory Cost Submissions to the Office of Management and Budget. (a) Beginning with the Regulatory Plans (required under Executive Order 12866 of September 30, 1993, as amended, or any successor order) for fiscal year 2018, and for each fiscal year thereafter, the head of each agency shall identify, for each regulation that increases incremental cost, the offsetting regulations described in section 2(c) of this order, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation.
(b) Each regulation approved by the Director during the Presidential budget process shall be included in the Unified Regulatory Agenda required under Executive Order 12866, as amended, or any successor order.
(c) Unless otherwise required by law, no regulation shall be issued by an agency if it was not included on the most recent version or update of the published Unified Regulatory Agenda as required under Executive Order 12866, as amended, or any successor order, unless the issuance of such regulation was approved in advance in writing by the Director.
(d) During the Presidential budget process, the Director shall identify to agencies a total amount of incremental costs that will be allowed for each agency in issuing new regulations and repealing regulations for the next fiscal year. No regulations exceeding the agency’s total incremental cost allowance will be permitted in that fiscal year, unless required by law or approved in writing by the Director. The total incremental cost allowance may allow an increase or require a reduction in total regulatory cost.
(e) The Director shall provide the heads of agencies with guidance on the implementation of the requirements in this section.
Sec. 4. Definition. For purposes of this order the term “regulation” or “rule” means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency, but does not include:
(a) regulations issued with respect to a military, national security, or foreign affairs function of the United States;
(b) regulations related to agency organization, management, or personnel; or
(c) any other category of regulations exempted by the Director.
Sec. 5. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE,
January 30, 2017.
I didn’t see anything in there that jumped out, overtly, as picking or minimizing impact based on value. I did, however, note the afore-mentioned items.
The first is found in Sec. 1. The CFR creates an insane burden on people and companies. Forced (at gun point) compliance is one of the three (non martial) ways the government dominates all life on Earth (the others being taxation and inflation). In his former business life I’m sure Trump spent years and hundreds of millions of dollars complying with these things. Thus, he wants, upfront and in writing, to aim protection at those who suffer – the People.
Second, he wants to reign in the federal budget, much of which is consumed by regulatory expenditures. How much? Don’t know. A LOT! The rest of the Order repeatedly talks about cutting costs. There’s nothing stating “Canadian” equal or greater impact. However, that is hinted at. It would make fiscal sense to do away with the most costly regs first from a budget standpoint.
However, I do not see that as a limit here – just a strong suggestion. Even if that became standard operating procedure, cutting so as to be revenue neutral, it would go a long way towards halting the cancerous growth of the administrative budget. And that’s its own issue in the Order.
Right now there is no independent assessment of the regulatory budget. There never has been. The closest we have is a lumping together of these expenses in the annual budget Bill summaries. And the clowns in Congress haven’t put together a complete budget in ten years! They are literally spending our money willy-nilly.
Trump’s Order directs annual expenses to the OMB. He’s telling them to publish a budget if they want one considered. And he’s telling them to cut the associated costs. It’s far from perfect but this is the best thing I’ve seen on the subject, maybe ever.
Setting aside the blatant fact that nearly 100% of all regulations represent illegal abdication of Congressional legislative authority. (Where’s the DOE or the other DOE or the DOC in the Constitution? Where’s the rule-making authority? Don’t look; it’s none of it in there). Setting that aside, the program is wildly expensive, inside and out of D.C.
I’m not looking through pie charts for a breakdown but I safely guess the total budgetary bill for all these agencies and their rules is on the order of $200 Billion. Per year. The total expense outside of the government, the cost of complying with these illegal fiat-laws is probably on the order of $1 Trillion per year. That’s $1 Trillion better left in the general economy – 20 million, $50,000 a year jobs, for example.
The size and scope of the CFR is truly baffling. I wasn’t too far off calling it a minor planet. In its infancy, in 1960, it stood in around 23,000 pages. By 1975 it was up to 71,000 pages. Now it’s closing in on 200,000 pages across 50 Titles. The index alone is 1,100 pages long – about the size of a large dictionary, the Bible, or The Lord of the Rings. Obama added over 17,000 pages in his first five years in office.
Assume one to two pages per regulation and you’ve got a whole sh!t-ton of BS to wiggle through – or pay for.
Some feebly argue these regulations “protect” people. The children, the crippled, the downtrodden, etc. Were none of these people protected in 1975? 1960? The answer is “yes” and, back then,they had jobs because businesses didn’t divert as much cash to satisfying this forest of craziness. And believe it or not, people existed, thrived, and were “protected” before any of this started. How else did people survive long enough to witness the creation of the “protective” agencies which are killing them?
Ryan Young wrote a piece on the 2 for 1 parings for the Competitive Enterprise Institute yesterday. It’s worth a read as is much of their information (where some of my numbers herein came from).
However this may work out one thing is certain: there is plenty of material to work with. Oil that chainsaw, Mr. Trump.