For the last 40 years, the desire to reduce the power of the regulatory state has been one of the central policy goals of the Republican Party. In some specific policy areas, this desire has been shared by Democratic politicians. Accordingly, starting in the 1970s numerous pieces of deregulatory legislation have been passed, for better or for worse, by bipartisan majorities. Transportation deregulation, financial-services deregulation, and telecommunications deregulation, for example, have occurred in the United States as a result of the legislative process.
The Republican Party has learned, however, that there are limits to the extent that Democratic politicians are willing to cooperate to pass deregulatory legislation. Consequently, in many policy areas—environmental law, occupational health and safety, and consumer protection, for example—Republican administrations have had to figure out how to accomplish deregulation on their own. Since the 1980s, their answer has been executive deregulation. Presidents Reagan, Bush 41 and 43, and Trump have all attempted to bypass Congress and use the administrative process to undo the regulatory initiatives of their Democratic predecessors.
In her article, “The Trouble With Counting: Cutting Through the Rhetoric of Red Tape Cutting,” my colleague, Jodi Short, describes the latest techniques of executive deregulation. She starts by describing President Trump’s “2 for 1 Order,” which requires agencies to repeal two regulations for every one they propose. She then demonstrates that this policy is part of a larger intellectual project known as “regulatory counting.” Proponents of regulatory counting argue that economic growth is hampered by the sheer quantity of regulations on the books. They attempt to draw some sort of causal connection between the number of regulations and economic growth. The specifics of any given regulation are irrelevant to this analysis. More is bad, less is good. Period. Thus, the 2 for 1 Order. If the government decreases the number of regulations on the books, it will stimulate the economy.
Yes, this is as ridiculous as it sounds. The bulk of Professor Short’s paper is spent demonstrating the absolute empirical bankruptcy of this approach to deregulation. Just imagine the mistakes that are made if you measure the cost of regulations by simply counting their raw number: a regulation that prohibits the government from doing something is treated the same as a regulation that prohibits a private person from doing something; a regulation that requires a person to take a small, essentially costless act (a requirement that you provide an agency with a cell-phone number) is treated the same as a regulation establishing a complex, burdensome regulatory regime; a regulation that gives a benefit is treated the same as one that imposes a burden. Frankly, there are so many flaws with regulation counting that dismantling its validity is like shooting fish in a barrel, particularly for a trained social scientist with remarkable quantitative skills, like Professor Short.
“The Trouble With Counting” does not, however, merely debunk this absurd regulatory strategy. Professor Short asks why conservative intellectuals and policymakers are engaged in this intellectually flawed project. She has two answers. First, she suggests that by cloaking even ill-considered deregulation in a mantle of empiricism, regulation counters are hoping to convince courts that any reduction in the number of regulations is nonarbitrary, even if the agency has trouble justifying the recession of a particular regulation.
Second, Professor Short argues that regulation counting illustrates a fundamental characteristic of the deregulation movement in the United States: that it is not really about promoting economic efficiency. Regulation counting, as she demonstrates, has no discernable relationship to promoting economic growth. Instead, it is a symptom of the root causes of the deregulatory impulse: “fervent feelings and fears about regulation’s restrictions on liberty.” Professor Short suggests the number of regulations that our government issues has an “unquantifiable cost,” a psychological injury to people who see regulation as an “affront” and “a barrier to their self-actualization and personal fulfillment.” Professor Short suggests that only by understanding this emotional underpinning of the deregulatory impulse can our country have a meaningful political discussion about the relationship between the regulatory state and the social problems it is supposed to address.