Op-Ed: There’s Little Confusion About Trump’s Regulatory Record

Source: By Cass R. Sunstein, Bloomberg • Posted: Tuesday, August 7, 2018

During a recent visit to a nondemocratic country, a government official asked me a challenging question.

“We don’t have elections or democracy,” he began, “and so we can plan over a long time horizon. You can’t. Bush does a bunch of things, and then Obama undoes them, and then Trump gets rid of everything Obama did. Who knows what your next president will do? Isn’t your system a big fat mess?”

Many Americans are asking the same question. To a large extent, ours has become a system of government-by-regulation. Because of internal divisions, Congress is often unable to enact legislation. But on his own, a president has the legal authority to go in all sorts of new directions, upending private-sector expectations and making it tough to plan for the long haul. It’s no surprise if a lot of people feel whiplash.

Just last week, for example, the Trump administration proposed to freeze fuel economy standards as of 2020, and thus to reject a long-planned increase in stringency through 2025.

Who knows what will happen if a new president is elected in 2020? It sure sounds like a mess.

But in general, it really isn’t. There’s a lot more continuity than you might think.

In late 2008 and early 2009, I worked on Barack Obama’s transition team, scrutinizing President George Bush’s regulations to see what we might want to abandon. We were surprised to find that we were pretty comfortable with much of what Bush had done. Even when we didn’t love it, we often concluded that it wasn’t worth the time and effort to change it.

There has been a lot of noise since January 2017 about how Trump is obliterating Obama’s regulatory legacy. That view is false. Most areas show continuity.

Very recently, for example, the Trump administration embraced three major Obama-era regulations: a rear visibility rule requiring cameras in new motor vehicles; an ozone regulation calling for strict environmental controls; and a calorie-labeling rule applying to chain restaurants.

These steps follow many others, mostly quiet, in which Trump appointees have publicly reaffirmed the work of their immediate predecessors, or at least declined to take steps to change it.

To be sure, the Trump administration has gone in different directions in some crucial areas. On civil rights, for example, Trump officials have rejected policies forbidding discrimination on the basis of sexual orientation and have taken a strong stand against affirmative action.

Climate change is a major area where the administration has changed course, as the proposal to freeze fuel-economy standards suggests. With respect to power plants, Trump’s regulators are taking stepstoward removing the most stringent controls on greenhouse gas emissions. They are also reducingregulation of coal companies in other areas.

From one point of view, that’s messy. Companies and investors need to plan, and for that, a stable regulatory background is important. It’s not ideal if the government gives confusing signals to automobile companies, or if investors in the energy sector cannot be sure where to place their bets.

But the system has important safeguards against excessively abrupt changes. Regulators listen carefully to the private sector, and when companies value stability, they are not shy about saying so.

Would-be deregulators are sometimes amazed to learn that companies have adjusted to the rules of the road, even if they opposed them vociferously in the first place. And officials are unlikely to work on behalf of deregulation when companies don’t want it.

Sure, companies often want to remove regulations that have not yet gone into effect. Trump’s proposed weakening of the fuel-economy standards is a case in point (though automobile companies are divided).

But even if you don’t like the Trump proposal (and you really shouldn’t), it’s noteworthy that his regulators did nothing to affect the Obama administration’s fuel-economy standards through 2020. And before the president’s proposed freeze can go into effect, he will have to deal with a host of objections, and undoubtedly a serious legal challenge.

The overall picture shows a lot more regulatory continuity than people think, even across administrations with dramatically different views. Some issues, of course, define political differences, and to that extent, significant breaks are inevitable.

That’s not really a mess. It’s a concrete demonstration that elections have consequences, above all in a period in which the executive branch settles countless questions entirely on its own.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the editor of “Can It Happen Here? Authoritarianism in America” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”