Later this morning, CPR Member Scholar and Georgetown Law Professor Lisa Heinzerling will testify before the House Small Business Committee at a hearing that appears to be aimed at reveling in the Trump administration's assault on regulatory safeguards. In her testimony, Professor Heinzerling will explain why the celebratory mirth and merriment from the committee's majority members and their invited witnesses is misplaced and most likely premature.
As Heinzerling will point out, the major motivating force behind the Trump administration's assault is its so-called one-in, two-out executive order, which mandates that agencies repeal two existing rules for every new rule they wish to issue and to ensure that the cost savings that result from those repeals are sufficient to fully offset any costs the new rule might impose. This order was meant to give agencies' deregulatory efforts a shove, but it may prove to have been too powerful in that regard. In their mad dash to advance the order's objectives – a dash made even madder by the administration's own unforced error in failing to fill key leadership posts – agencies have cut important procedural corners, leaving their deregulatory actions vulnerable to legal challenges. And, as Heinzerling points out, agencies have been on the losing end of a lot of legal challenges so far.
The good news, such as it is, is that much of the Trump deregulatory agenda has not held up or remains in legal limbo, and much of what remains pending is likely to face a similar fate.
Apart from pointing out the shaky legal underpinnings of the Trump assault, Heinzerling will also take issue with the policy basis of the one-in, two-out order. In particular, she'll point out that forcing agencies like the Environmental Protection Agency (EPA) to shut off their rulemaking pipeline, as the order does, seems especially foolish in light of the recent Office and Management and Budget (OMB) draft Report to Congress on the Costs and Benefits of Federal Regulation. She lays out the self-defeating effect that Trump's order has had on the EPA in the following stark terms:
No agency in this administration has taken a bigger axe to existing regulatory programs than the EPA. Yet OMB has also reported that EPA rules outperform the rules of all other agencies combined in terms of producing net monetized benefits. OMB estimates that from 2006 to 2016, EPA regulations provided as much as $706 billion in benefits – measured in such terms as lives saved, illnesses averted, and environmental degradation reduced – while imposing no more than $65 billion in costs.
In terms that should resonate with the committee members, Heinzerling will also explain why the Trump assault on public safeguards probably will not help small business and almost certainly will harm them. As she puts it, "In fact, many of the administration's deregulatory actions not only fail to target their savings to small businesses, but they affirmatively harm small entities by withdrawing regulatory protections that would have benefited them."
If the committee truly cares about helping small businesses, they would do well to pay close heed to Heinzerling's testimony. Undermining vital protections won't help anyone, least of all small businesses.