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Regulation in Transition

By Bethany A. Davis Noll and Richard L. Revesz. Full Text.

Presidents have long sought to roll back their predecessors’ regulatory policies. They have typically relied on efforts to repeal regulations and to withdraw unpublished or non-final regulations pursuant to “stop-work” orders directed at agency heads. President Trump is no exception. But rather than stick to the typical playbook, he also made aggressive use of three other instruments: Congressional Review Act disapprovals, requests that courts hold in abeyance pending cases challenging Obama-era regulations, and suspensions of final regulations. Through these strategies, the Trump administration was able to reach a far greater proportion of regulations than would have been possible under prior practices.

This Article identifies this new trend in aggressive regulatory rollbacks and argues that it is likely to become an enduring feature of American politics. In the current climate, aggressive rollback strategies will lead to an important reconceptualization of the Executive Branch in which future one-term presidents are unlikely to see a significant portion of their regulatory output on important matters survive. As a result, when fashioning regulatory policy, future presidents will face significantly different incentives, which will affect a broad set of decisions, from transition planning for an incoming administration, to the timing of regulatory actions relative to a president’s reelection campaign, to electoral strategies.

With reelection now a prerequisite for leaving a durable regulatory legacy, regulatory policy will take on characteristics that are similar to electoral schemes in which multiple votes are necessary for significant decisions. But the justifications that undergird these multiple-vote requirements—legitimacy, stability, and quality—do not support the transformation occurring with the Executive Branch’s regulatory policymaking power. Despite that fact, these features are likely to remain part of the political and administrative landscape, and future presidential administrations will need to adjust to them.