The Wall Street Journal | By David Schoenbrod | June 18, 2017 5:35 p.m. ET:
Lawmakers seek credit for benefits while evading blame for burdens. Change will require them to act.
Candidate Donald Trump vowed to spur economic growth by freeing businesses from burdensome regulation. President Trump has fallen short on this pledge, despite strong rhetoric and some excellent appointments. If he wants lasting reforms of the regulatory state, he’ll have to work with Congress to make elected officials accountable again.
“We’re cutting regulations massively,” Mr. Trump said at the Jan. 30 signing ceremony for an executive order commanding agencies to repeal two regulations for every new one.
Conservatives may see this as a move in the right direction, but it won’t work: The agencies might have been able to comply before the late 1960s, when they had a freer hand, but not now.
In 1970 Congress passed the Clean Air Act. It was one of the first in a long series of statutes that give citizens the right to regulatory protection, command agencies to do what is necessary to protect those rights, and direct courts to enforce the commands.
This type of legislation allowed elected officials to claim credit for the benefits of regulations while shifting blame to agencies for the burdens. The system became so politically profitable that politicians from both parties showed practically limitless enthusiasm for giving citizens rights to protection. The Clean Air Act contained 940 detailed commands for the Environmental Protection Agency, some of which require it to issue dozens of separate regulations binding businesses.
With so many judicially enforceable commands requiring agencies to regulate, Mr. Trump’s executive order can keep the feds from issuing new regulations only until courts require compliance with the statutes. The order will postpone new regulations—but at the price of exposing businesses to growth-killing uncertainty. Agencies have some wiggle room to reduce the burdens imposed under existing regulations, but doing so requires time-consuming work to demonstrate compliance with each statute’s detailed requirements. Even if the burden-reducing changes survive judicial review, the process takes years.
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