The Regulatory Long War

The Regulatory Long War
The Environmental Protection Agency headquarters in Washington, on March 23, 2023. (Richard Moore/The Epoch Times)
Thomas McArdle

In his 2019 State of the Union address to Congress, President Donald Trump deplored “the new calls to adopt socialism in our country” and affirmed that “America was founded on liberty and independence, and not government coercion, domination, and control” and that “we are born free and we will stay free,” and decreed that “tonight we renew our resolve that America will never be a socialist country.”

The Trump presidency is usually sized up based on the onslaughts waged against it by the left, such as accusations of Russia’s influence on his campaign, which three years of wasted, taxpayer-funded investigation thoroughly discredited; the two failed impeachments; policing the border against illegal immigration and weaponizing trade policy against foreign adversaries such as China; and, finally, saving the nation from what we know now would have been three Hillary Clinton Supreme Court appointees.

But arguably the former president’s most consequential actions opposing the encroachment of socialism—and those most hated and resisted by the Washington swamp—were in the regulatory sphere.

The pushback against his administration’s prodigious deregulation measures is still unceasing.

In recent days, we've seen American industry complain that Washington is inflicting upon the U.S. economy a banking regulatory regime far more punitive than the trends found in the socialistic European Union. Secretary Pete Buttigieg’s Transportation Department, for example, just rescinded President Trump’s 2020 authorization allowing the transport of liquefied natural gas via railway; and President Joe Biden is even resurrecting the 1931 Davis-Bacon Act’s artificially high wage rules for Big Labor, dead since the Reagan era, to be applied to the misnamed Inflation Reduction Act’s green energy initiatives.

There's an inherently undemocratic character to the relentless thirst for more and more regulation. A President Trump executive order directed executive branch agencies to post their guidance documents on the internet and identify the rules they use in determining them. It was to be in the form of “a single, searchable, indexed database that contains or links to all guidance documents in effect.” The purpose was “to ensure that Americans are subject to only those binding rules imposed through duly enacted statutes or through regulations lawfully promulgated under them, and that Americans have fair notice of their obligations.” This approach had bipartisan support, yet President Biden revoked the order on the very day he took office, told the agencies to cease public disclosure and explanation, and took down the agencies’ guidance websites.

One might ask, then: If the regulations are so great and necessary, why don’t the regulators want the public to know as much about the rules as possible?

In the wake of revoking the Trump demand for governmental transparency, Susan Dudley, who founded the George Washington University Regulatory Studies Center and was the regulation overseer in the George W. Bush White House, warned two years ago that while “President Biden certainly displays more personal humility than his predecessor ... he must embrace regulatory humility as well.” She noted that “in revoking former President Trump’s regulatory executive orders, President Biden threw at least one baby out with the bathwater. He abandoned Executive Order 13,891, which required agencies to seek public input when developing significant new guidance and to make all their guidance readily accessible online,” a case of a “Trump initiative that received general support from a wide range of law and policy experts who have worried about lack of transparency and abuse of guidance for decades.”

The Trump administration boasted of cutting close to eight regulations for every new one imposed, with the ultimate effect of lifting Americans’ real incomes by more than $3,000 annually per household and saving consumers and businesses more than $220 billion per year. And even when courts blocked Trump’s deregulation, remnants often remained. Plus, as aggressive as the Biden administration has been in reversing his predecessor’s regulatory relief, it couldn't always succeed. For instance, President Barack Obama’s broad climate regulatory authority on states’ electricity production, scrapped by President Trump, couldn't be reinstated by President Biden, and the administration has been forced to pursue a different approach.

The undemocratic character of the attitude toward the regulatory apparatus is far more potent when it comes to the blind faith that Democrats in Washington place in the presumed experts of the government bureaucracy, reminiscent of Project Cybersyn, the attempt in the early 1970s by Chilean premier Salvador Allende to prove that computers were the solution to managing a socialist economy successfully.

Meanwhile, six U.S. Supreme Court justices—three appointed by President Trump—nixed the reflexive deference to unelected functionaries in last year’s landmark West Virginia v. the Environmental Protection Agency ruling. Chief Justice John Roberts’s opinion concluded that “it is not plausible that Congress gave the EPA the authority to adopt on its own” a regulatory scheme for a nationwide transition away from coal in generating electricity.

“A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” he said.

In other words, elected representatives of the people decide big questions, not unelected “experts.”

In his concurrence, Justice Neil Gorsuch wrote: “When Congress seems slow to solve problems, it may be only natural that those in the Executive Branch might seek to take matters into their own hands. But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

Unfortunately, much of President Biden’s so-called Inflation Reduction Act—which, rather than reduce inflation, imposes the extreme environmentalist agenda—is geared toward legislative attack on that high court ruling. Thus does the long war over regulation (and socialism) go on bloody year after bloody year.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Thomas McArdle was a White House speechwriter for President George W. Bush and writes for
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