A saving grace of President Donald Trump and the other goons wreaking havoc across the government is that they aren’t especially smart. This bare fact may shine brightest in the Trump administration’s clumsy efforts to deregulate.
The president, in laying waste to regulatory agencies, makes it look as if he’s cracking down hard on regulation, but he isn’t. He isn’t because he can’t eliminate regulations while those agencies remain in disarray. To Trump and his DOGE-meister, Elon Musk, deregulation may be a religion, but more prosaically it’s a process, one that requires, by law, the same cumbersome procedures that were necessary to impose the offending regulation in the first place. Gum up the works and, sure, you can halt new regulations that protect worker safety, reduce carbon emissions, keep banks from taking on excess risk, or achieve other things that keep ordinary people safe. But you also prevent federal agencies from dismantling existing regulations enacted by President Joe Biden and others.
Biden, according to one of Trump’s executive orders, imposed $1.7 trillion in regulatory costs on American business. This is a rare instance of Trump lowballing the truth. According to the American Action Forum, a conservative nonprofit, Biden actually imposed $1.8 trillion in regulatory costs, based on self-reported estimates from various federal agencies. (An important caveat is that these up-front estimates are always too high.) Biden imposed a lot of significant regulations to protect the public interest against the excesses of profit-seeking businesses. It’s kind of a shame this got noticed mainly by conservatives who opposed these efforts.
The Environmental Protection Agency accounted for the largest share of that $1.8 billion in regulatory costs due to what’s known as the “tailpipe rule.” This measure, issued last March, will limit the greenhouse gas emissions from cars, light trucks, pickup trucks, and vans starting in 2027. According to AAF, the cost of that rule alone will be $870 billion. The EPA calculated the monetary benefit to the public to be higher, but neither AAF nor the Trump administration cares about that. Trump would like to kill the tailpipe rule; one of his executive orders specifically targets “restrictions on consumer choice of vehicles.”
But to kill the tailpipe rule will require, under the 1946 Administrative Procedure Act, issuing a proposed rule to revoke it, followed by a comment period, followed by a revised cost-benefit analysis, followed by a final rule. This process takes about a year under the best of circumstances, and these are not the best of circumstances. Last week, the EPA terminated 388 probationary employees (meaning employees hired within the past two years, who are easiest to fire). The week before it put 200 more employees on administrative leave. More than 1,100 EPA employees have been warned they could be fired at any time, and during Trump’s first term more than 1,200 were either fired or quit. The total EPA workforce today is only about 15,000.
How do you get a regulation gutting the tailpipe rule out the door when you don’t have the manpower to do it? You do a slapdash job. But then a judge will bust you for failing to follow the procedures established under the APA. During his first term, because of sloppy administrative work, Trump lost 57 percent of all legal challenges to major regulations. His record on legal challenges to minor regulations was even worse. Judging from what we’ve seen thus far, there’s no reason to believe Trump has the patience to thread the needle more carefully this time.
Another way Trump is sabotaging his own deregulation effort is through the virtual shutdown of three independent agencies, which I wrote about earlier this month. Trump put the Consumer Finance Protection Bureau out of business by firing its chairman and replacing him, temporarily, with Treasury Secretary Scott Bessent—who had not the slightest interest in protecting consumer finances—and then with Office of Management and Budget chief Russell Vought, who closed its headquarters. Trump also put the National Labor Relations Board and the Equal Employment Opportunity Commission on ice by firing enough board members and commissioners at both agencies to deny both bodies a quorum.
The NLRB and EEOC firings were against the law, and these board members and commissioners will likely be reinstated in federal court. But if Trump appeals all the way to the Supreme Court, he stands an excellent chance of winning, because its conservative majority is itching to overturn the 1935 precedent that keeps presidents from firing board members and commissioners with fixed terms at independent agencies.
Still, this strategy isn’t as smart as it seems. An incoming Trump administration can achieve deregulation at the EEOC or NLRB only by overturning rulings and regulations handed down under Biden. If the independent agency in question lacks a quorum, then the Biden rulings remain the precedents followed by administrative law judges in proceedings around the country (which continue even when the board or commission lacks a quorum).
Let’s take for our example the NLRB, which I know best. Under Biden, the NLRB barred management from gerrymandering union bargaining units to their advantage; it streamlined the process for union elections; and it barred employers from firing employees engaged in collective action merely for using offensive language. (I’m grateful for these examples to Lynn Rhinehart, Celine McNichols, and Margaret Poydock of the nonprofit Economic Policy Institute.) The United States Chamber of Commerce would surely like to see these rulings overturned. But they can’t because no functioning board is available to overturn them. Jennifer Abruzzo, who was general counsel under Biden, pointed out to me that her successor “rescinded many memos involving my initiatives” to alter existing standards. That isn’t good. But rescinding general counsel memos merely stops the board from considering new pro-worker practices that weren’t likely to win approval from a Trump NLRB in the first place. It doesn’t overturn rulings (or regulations) issued by the Biden NLRB.
The foregoing critique rests on two assumptions that, I’ll grant, may not hold up. The first is that Trump can eventually, after enough court injunctions, be made to follow the rule of law. “They could fail miserably in their attempts to deregulate,” Judy Conti, government affairs director of the National Employment Law Project, told me. “We could sue for all sorts of Administrative Procedure Act violations, and we could win in the courts” only to see Trump “ignore the courts ... We don’t quite know yet the depth of the lawlessness that we’re dealing with.” A fair point, and one that keeps me awake nights.
My second assumption that may prove faulty is that Trump really cares to achieve what he says he wants to achieve. Past experience has taught us that what Trump most cares about is creating the appearance that he achieved this or that goal. Thus we have Trump claiming, during his first term, to have lowered the cost of insulin for Medicare patients, when he didn’t (that was Biden), or claiming to have built his “big, beautiful wall” along the southern border, when he only built 80 miles worth.
It’s very possible that Trump, even if he failed to throw out a single Biden regulation, would say he eliminated them all. He would probably even believe it. If he did say that, though, it wouldn’t have come to pass unless he allowed the regulatory agencies he deplores to actually do their job. At the moment, we have no reason to believe that will happen.
