Regulatory Review in Anti-Regulatory Times

Abstract

This Article investigates the role of cost-benefit analysis in an antiregulatory regime. The first two years of the Trump Administration have seen the first vigorous use by Congress of its power to overturn recently issued regulations and the creation of novel deregulatory mechanisms layered on top of cost-benefit analysis. There have also been dramatic examples of sharply reversed CBAs, in which regulations that were said to have large net benefits under Obama are instead said to have net costs under Trump. The Trump Administration’s regulatory review initiatives focus heavily on costs, with limited attention to benefits. Case studies of three regulations show that the economic analysis of one is seriously defective, another admits to having severe limitations, and a third seems makes a concerted effort to reduce the weight of benefits. Some of these characteristics may be analytically defensible, others seemingly are not. It is even harder to connect Congress’s recent uses of the Congressional Review Act to either a concern about net benefits or a desire to reduce the economic burdens of regulation. Thus, cost-benefit analysis seems overall a marginal part of current regulatory policy. This lack of interest in regulatory analysis seems to be a characteristic not only of the Trump Administration but of the Republican Congress.