It is now required that every new government regulation will require two to be marked for removal.

This is intended to reduce government bureaucracy and interference in existing systems.  In principle, it’s perhaps a good thing; we do, after all, have far too many laws and regulations on the books.  But in practice, this will be disastrous — which is why it’s never been successfully done before.

What’s A Regulation?

The way our government works is that, for the most part, Congress passes laws and agencies make them happen.  These agencies are controlled by the Executive branch rather than by Congress, but they are required to follow and uphold the laws, and to pass them on to us.  They do this by creating enforceable rules and penalties called regulations.

So for example, if Congress wants to force car manufacturers to install seat belts, they will pass a bill which requires the Commerce Department to make that happen.  Commerce then, after a long period of deliberation and consulting with the industry, drafts a set of safety regulations which describe what a seat belt is, explain what it’s supposed to do, mandate a certain level of quality in its materials, et cetera.

The Executive Order

“…Unless prohibited by law, whenever an executive department or agency… publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed…”
Executive Order of 30 January 2017

This takes effect immediately, and covers every agency under the Executive Branch, from Commerce to Treasury to Agriculture to Justice and beyond.  It does not touch on the Supreme Court or the Congress directly, but since everything each orders is put into practice by cooperation with the Executive, this order impacts every agency within the Federal Government.

The Intent

Ever since governments first started regulating business, businesses have been complaining about government interference.  And, in truth, regulations can do some unpleasant things to manufacturing concerns, for instance; we require some safety gear in our factories that Mexico does not, and so it’s marginally cheaper to make cars in Mexico.  It’s less safe, but that won’t prevent an auto manufacturer from moving its factory to avoid a cost they deem unnecessary.  The same holds for emissions and pollution restrictions, labor laws, et cetera.

So the present situation can have unintended consequences, such as moving car manufacture and steel mills outside the country.  It also decreases the amount of soot in the air, reduces cancer among the workforce, and keeps the number of people who got their hand caught in an industrial milling machine last year to a minimum — which is what the regulations are intended to do.  And, when an agency observes a workaround (such as, “Oh, let’s jut move our factory to Mexico!”) it can respond with further regulations (paragraph iii(b) ~ All vehicles imported under Section 6 must be manufactured according to the rules in USC 35, pp1101 et seq.) in order to adapt to the unintended.  And so the cycle goes, and the book of regulations gets ever longer, and there are more and more unintended consequences.

So the intent of this order is a good one:  In order for any new regulation to be passed, two old ones will have to be rescinded.  Over time, that should clean things up and simplify them, such that any rules which the agency views as ineffective, outdated, or just a low priority will be eliminated first.  Eventually, the law will become simple, sane, and effective.

The Reality

Just as auto manufacturers must either build factories in Mexico or get out-sold by their overseas competition, professional bureaucrats will need to find workarounds for the new Executive Order so they can continue doing their jobs.  After all, if Congress passes a law against driving your lawnmower while intoxicated (the George Jones Act), someone will have to create the regulation — and that means eliminating two other regulations, in this case rules that have nothing whatsoever to do with lawnmowers.

And so first we’ll see regulations on the proper use of buggy whips and the construction of rain-barrels disappear, because we really don’t need those any more.  And then we’ll see big omnibus packages that add the Lawnmower Rule while condensing the six Seatbelt Rules into four, two of which contain run-on sentences.  And nothing will be simplified, except for manufacturers of buggy whips.

Over time, though, as it gets harder and harder to create new rules, the various agencies will begin to resist — and resist as only bureaucrats can.  New laws will be delayed or found unnecessary, and whenever possible they will be added as amendments to existing regulations.  Because the Order specifically requires this of anything with a public hearing, the number of public hearings is going to decrease — not because they’re bad or wasteful; they’re not at all, but because having a hearing means you have to get rid of two regulations.

And, as a side effect to this, the amount of work actually needing to be done by government bureaucracy will increase, because each agency will need a team of people scanning present regulations for ways to reduce their number.  Hordes of lawyers will be called in and consulted, and spending will increase — and the business of government, made ever more inefficient, will slowly grind to a near halt.

The Solution

As Acting Attorney General Sally Yates discovered yesterday, the Trump Administration is only too delighted to fire anyone that won’t follow orders.  As such, it’s going to be tough to find career officials who are willing to do anything other than wholeheartedly comply.  Which in a sense is good; we can’t have the Secretary of Agriculture leading a coup via paperwork; that’s not how the country is supposed to work.

But, eventually, someone somewhere will go to the President and say, “This is silly.  All we’re doing is making more work for ourselves without actually reducing bureaucracy.  We need to stop.”

And the first one brave enough to do this will probably get fired.  So will the second and third.  But, eventually, someone will manage to convince the Executive to end this — or Congress will pass a bill which makes the Order powerless.  One way or the other, this will end.

And, unfortunately, very little will be accomplished toward the very laudable goal of reducing excessive government regulation.  Why?  Because bureaucracy, that’s why.