During the campaign, Donald Trump said that “70 percent of regulations can go.” A lot of people agree with him. It’s g⭕enerally believed that the Code of Federal Regulations has developed a severe case of elephantiasis, and that this is a leading cause of the decline in American economic growth. A 70 percent cut in the CFR’s 100,000 pages wou🌞ld bring us down to 1972’s more manageable page levels.
Our regulatory state is more than a stumbling block for the economy. It’s alಌso a threat to democratic government.
If you thought you were governed by laws passed by Congress and signed by the president, guess again. The rules tha😼t matter, the ones you’re most likely to bump against, are much more likely to have been adopted by regulators who🉐 aren’t really accountable to anyone except themselves.
But how to turn things around? In office, Trump and the Republicans have tried to pare back regulations. Using the Congressional Review Act, Republicans overturned 14 of President Barack Obama’s regulatioﷺns. But that only works for rules adopted🥃 over the prior two months, and the window for Obama’s regulations has now closed.
For older rules, Trump issued an executive order directing federal agencies to find two rules to eliminate for every new rule proposed, but that can only be done by going through the notice-and-🧸comment provisions of the Administrative Proced🐲ure Act. That means that each rollback has to be separately justified.
In short, the deep sta꧅te has developed self-protective mechanisms that ensure its continued dominance. The APA was supposed to protect us from a regulatory nightmare. But it has had just the opposite effect, preventing us from rolling back excessive regulations.
So what’s the answer? Let’s go back to Justinian. Shortly after he became emperor in 527, Justinian created a law-reform commission to restate all the laws. Up to then, the sources of Roman law could be found in 2,000 books written over hundreds of years.
Rather than tinker with things, Justinian’s commission discarded rules that were inefficient, obsolete, repetitive and co🀅nfusingly overlapping, and produced a much shorter new digest. Laws not selected for the digest were declared invalid and were never to be cited thereafter in the courts.
Similarly, a modern regulatory-reform commission should be put to work, one composed of common-sense experts who are aware of both the good and bad things regulations can do. In particular, they should be alive to the harm created by a welter of rules so extensive and mind-numbingly detailed that no one can keep up with tꩲhem.
And the digest they propose should replace all existing rul🎉es and be exempted from APA review, on adoption by C💮ongress.
Could t﷽he commission cut back regulations by 70 percent, as Trump proposed? Yes, and more so, if it 🧔corrects three biases of the deep state’s rule-making.
First, the commission should abandon the regulator’s conceit that every little error deserves to be corrected by a rule. With that mistaken belief in mind, some regulator must have stumbled over a case where someone was confused at a butcher shop, and made it a crime to sell “Turkey Ham” as “Ham Turkey” or with the words “Turkey” and “Ham” in different fonts.
Second, the commission must recognize that we can’t anticipate all future risks and eliminate them with a rule. Theꦍ regulator’s hubris that he could do so is what added 20,000 pages of rules to the 1,000-page Dodd-Frank financial reform bill, without really𓂃 lessening the risk of a financial meltdown.
Third, the commission should substitute general common-sense standards for detailed rules wherever possible. That’s what another legal reformer, Napoleon, did when his experts produced the French Civil Code. All of the law of torts was reduced to two articles of the code. “Any act of man, which causes damages to another, shall oblige the person by whose fault it occurred to repair it” (art. 1382); and “one shall be liable not only b♐y reason of one’s acts, but also by reason of one’s imprudence or negligence” (art. 1383).
With common-sense standards like that, you don’t need to specify that skateboarding at the National Institutes of Healt🅺h is a federal crime, as if that really caused damages to anoth𝔉er.
Now all we have to do is persuade Trump that he’s in the same league as Justinian or Napoleon.
F.H. Buckley teaches at Scalia Law School.