By Lisa Soronen
President Donald Trump’s “2 for 1” executive order where for every federal regulation proposed two must be “identified” for repeal, unsurprisingly, has been criticized by some and applauded by others.
Under the executive order, for every regulation added, the cost of the new regulation must be offset by eliminating two regulations.
Those who support the executive order argue it will be good for the economy. Those who are against it argue most regulations exist for good reason and eliminating regulations like “limiting lead in drinking water and cutting pollution from school buses” will harm Americans. Those opposing the executive order also argue it is arbitrary to eliminate regulations based solely on cost without considering benefit.
Without a doubt states and local governments would benefit from the repeal many federal regulations. But can it be done this way?
At least two legal barriers exist to eliminating regulations through a “2 for 1” scheme or generally.
Some statutes require administrative agencies to write regulations. Simply eliminating such regulations would be legally problematic. The executive order is sprinkled with the phrase “unless required by law,” which is perhaps an acknowledgement that not all regulations can be eliminated without a replacement.
Under the Administrative Procedures Act (APA), getting rid of federal regulations involves the same lengthy and cumbersome process as adopting federal regulations. The agency must publish the proposed repeal in the Federal Register, solicit comments from interested parties, and read and respond to comments. This process would likely take over a year—and much longer for more complicated or controversial regulations.
The APA requires that repeals of rules not be arbitrary or capricious. By this standard, an agency must "display awareness that it is changing position," and "show that there are good reasons for the new policy." Eliminating regulations for the sake of meeting a numerical or cost-based quota is not likely to satisfy this standard.
Lisa Soronen is executive director of the State and Local Legal Center. She is a frequent contributor on legal issues to the NCSL Blog.