Congress Needs To Keep Trump's Regulatory Rollback From Becoming Failure Theater

I’ll make no bones about it. The arrogation of power to federal agencies at the expense of Congressional oversight is the single biggest challenge to our liberty. At least when Congress does something boneheaded, we can change it. Obamacare was directly responsible for 2010. As I pointed out a few days ago, all the roadmaps being published that purport to show how to unravel the unconstitutional power grab by Obama are actually leading us astray.

Today there is a piece in The Hill on Trump’s planned assault on Obama’s regulations.

President-elect Donald Trump is setting out to gut the Obama administration’s regulations, starting with a mandate that would slowly chip away at the number of rules on the books.

In a video message mapping out his first 100 days, Trump said he would issue an executive order stating that for every new rule issued, two must be eliminated.

The president-elect has decried the regulations that he says have hurt businesses and the economy, particularly those aimed at the environment. And Republicans in Congress are eager to help him roll back many of President Obama’s regulations.

“One of the keys to unlocking growth is scaling back years of disastrous regulations unilaterally imposed by out-of-control bureaucrats,” Trump said during a September speech at the Economic Club of New York. “Regulations have grown into a massive, job-killing industry – and the regulation industry is one business I will absolutely put to an end on day one.”

It’s unclear how such a two-for-one arrangement would be carried out, but the proposal is raising hopes among those who are calling for deregulation.

This sounds good until you start looking at it. What keeps an agency from taking three previous rules, combining them into one rule, and repealing the three old rules? Are we better off? The same goes with a scheme pushed by Wisconsin Senator Ron Johnson to require Congressional approval to rules that had an economic impact above a monetary threshold. What keeps an agency from making two or three regulations below the threshold level to evade Congressional approval. In some areas, attempts to repeal regulations will lead to court fights that will last well beyond a two-term Trump administration. In fact, the EPA obergruppenfuerher, Gina McCarthy was basically laughing in Trump’s face.

“It’s going to be a very high burden of proof for them,” said Ms McCarthy, the head of the Environmental Protection Agency, outlining why US law would ensure that Mr Trump could not easily abolish climate change regulations.

Ms McCarthy said that, just as she had to provide a scientific foundation for her regulations to curb carbon dioxide emissions, the Trump administration would be required by the Clean Air Act to show that any attempt to tear up the regulations was scientifically justified.

“If they choose [to] develop a different record then they have a right to do that, but it’s going to be a very high burden of proof for them, because I have no question that what we have done will be solid from a science perspective,” she said.

“They have to figure out why the climate science isn’t overwhelming and go back all the way to the Supreme Court to explain why decisions we’ve already made are no longer correct, and I wouldn’t want to have that burden myself.”

In fact, regulatory repeal could very well be the first iceberg the SS Trump bounces off from on his cruise to 2020 (or 2024). In fact, it could end up looking very much like what Mitch McConnell did in his quixotic non-fight to repeal ObamaCare. It will be one act of Failure Theater after another. For a candidate how based his entire campaign on being the guy who could get things done, his supporters aren’t going to want to hear “this is too hard.”

This is where Congress needs to step in.

The EPA and other agencies only have that power that is delegated to them by various laws. For EPA (and its fellow travelers in destroying the economy, Interior and the Army Corps of Engineers) its wheelhorses are the Clean Air Act and the Endangered Species Act. These two laws give that agency immense power over economic activity. In a clever strategy, over the years the EPA has encouraged lawsuits from environmental groups then caved in court locking in some policies and rules as sure as if they were federal law.

The only way Trump can roll back the regulatory colossus is by Congress acting amend the laws used by the EPA and others to regulate far beyond their mandate. If Congress does act, then the next president will have a very difficult time extending his control in the way Obama did.