Legal Issues In the News

Checking In On ‘2 to 1’


University of Illinois College of Law

It was measure three on Presidential-Candidate Trump’s “Contract with the American Voter,” issued before the 2016 election.

A quote “requirement that for every new federal regulation, two existing regulations must be eliminated.”

Ten days after President Trump’s inauguration, “measure three” became law, in the form of Executive Order 13771.

Now, it’s generally accepted that Republican administrations aim to reduce the size and reach of the federal government. However, this clarion call regarding the actual number of regulations seems to be unique and has certainly been a major talking point of the Trump Administration for the past three years.

So, as we approach the 2020 election, how has “measure three” measured up?

The Federal Register, which is the publication for final versions of rules-or-regulations, had 18,727 pages devoted to final rules in 2017, the first year of the Trump administration, less than half of the record-setting 38,652 pages devoted to final rules in 2016.

And, in 2019, 2,964 final rules were created, nearly 900 fewer than in 2016, and the lowest number of final rules in one calendar year according to data going back to 1993.

In July 2018, Vice President Pence touted that the administration’s repeal ratio hadn’t been two regulations out for every one in, or 2 to 1, but rather 22 to 1. Analysis by a conservative think tank has brought that ratio back closer to 5 to 1.

Regardless of the actual ratio, the ethos of deregulation is clear in an administration whose latest regulatory plan only blesses new regulations that quote “correct a substantial market failure.”

All this deregulation does have caveats.

First, this deregulation has mainly been on “low-hanging fruit,” and hasn’t moved the needle on rules that are considered within the Office of Management and Budget to be major or economically significant, which means that the economic impact of the rule is at least 100 million dollars.

Indeed, between the Spring of 2017 and the Fall of 2019, departments and agencies reported nearly the same number, 155 regulatory and 154 deregulatory, for actions that were major or economically significant.  

Second, when the Trump administration has attempted large-scale deregulation, it has often been met with court challenges. Among the lawsuits currently out there are:  

  • California and nearly half of the other 50 states’ abilities to regulate vehicle emissions
  • The reduction of federally protected waterways under the Clean Water Act
  • The administration’s transferring of regulatory authority of certain firearms, including 3D-printed guns, from the State Department to the Commerce Department, where oversight is expected to be far less stringent,
  • And the downsizing of national monuments in Utah, one by about 85 percent of its original size, so that they can opened for mining, drilling, and grazing

As these legal challenges wind their way from trial courts to perhaps the U.S. Supreme Court, the administration is staying the course on deregulation, even as federal courts block some of administration’s activities.

As Casey Hammond, an Interior Department administrator recently said, quote: “If we stopped and waited for every piece of litigation to be resolved, we would never be able to do much of anything around here.”