Trump’s Regulatory Agenda Picks Up Steam
Newly elected presidents typically enjoy a “honeymoon” period, during which they’re granted a reprieve from the otherwise normal state of partisan hostility and opposition. Though more of a subjective concept than an empirical measurement, these first few months represent a critical stage in any presidency, and offer a unique opportunity for the new administration to advance major portions of its agenda. But in the words of conservative columnist Charles Krauthammer, which were written even before Donald J. Trump’s official inauguration, “the shortest honeymoon on record is officially over.”
Clearly, no one ever expected the opposition party to grant Trump a honeymoon period, or to make it easy for him to pass partisan legislation. But internal strife within the GOP is making this task even more challenging than originally anticipated. This dynamic is playing out as Republicans struggle to advance a health care overhaul bill, amid backlash from constituents and even members of their own party. And given the number of divisive issues still on deck – tax reform, trade and the border wall, to name a few – enacting meaningful legislation anytime soon will remain an uphill climb.
That said, this political gridlock on thorny legislative matters actually opens the way for the administration to concentrate on moving its regulatory agenda, which it can do with much less congressional interference or obstruction. Because they entered 2017 with control of all three branches of government (House, Senate and White House), Republicans face immense pressure from their political base to bring real change to Washington. With legislation moving slowly, both Trump and the congressional GOP are eager to show wins; the most obvious example of an area where this is possible is reducing the regulatory burden on business, where there is widespread agreement among members of the party.
The subject has been a staple of Republican orthodoxy for decades, and was a major theme throughout the Trump campaign. It also happens to poll extremely well among Americans, particularly within the business community. Regulatory reform is of particular importance for NAIOP members, whose businesses are affected by countless regulations, from the Environmental Protection Agency’s Waters of the United States (“WOTUS”) rule to the myriad regulations that emerged as part of the Dodd-Frank Act.
The Trump Administration has moved quickly on the regulatory front. On his first day, President Trump imposed a moratorium on future regulations released by federal agencies. Two weeks later, he issued an executive order (the so-called “one-in-two-out” rule) mandating that any new regulation be accompanied by the repeal of two existing regulations. The order also places additional emphasis on costs, and limits the amount of new regulatory costs agencies can impose on individuals and businesses each year. He has even elevated the role of his “regulatory czar” – the informal title given to the Office of Information and Regulatory Affairs’ Administrator, who is tasked with overseeing any rules promulgated by government agencies – to a level far greater than that of past presidencies.
Congressional Republicans are also uniquely equipped to take on the regulatory state, thanks to an obscure process established by the Congressional Review Act (CRA). Passed in 1996, the CRA established a “fast track” process for lawmakers to reject a broad range of regulations and other rules issued by agencies. Though only applicable to rules passed within 60 legislative days, the CRA gives Congress an additional tool with which to undo a number of Obama-era regulations; because it counts legislative, rather than calendar days, the window of time goes back to around June 2016. As of last year, the CRA had only been successfully used one time. So far, President Trump has signed eight CRA bills, with more expected in the near future.
Lawmakers are also turning to more “conventional” means of curbing what they see as regulatory excesses. Last month the House passed the Regulatory Accountability Act of 2017, which would require additional scrutiny of the costs of any new regulations. It also passed the Regulations from the Executive in Need of Scrutiny (“REINS”) Act, which requires congressional approval of any new regulations that cost over $100 million per year. Both bills await consideration by the Senate.
While the legislative terrain remains treacherous on many issues, the Trump White House and congressional Republicans are moving aggressively on their ideas of regulatory reform. As differences between factions of congressional Republicans on policy matters continue to surface, and tensions between the White House and Congress increase, expect to see continued action on the regulatory front – for now, an area where there is party consensus.
Alex Ford is NAIOP’s Director of Federal Affairs.