The Deregulatory Deception

Abstract

President Donald Trump and his supporters repeatedly pointed to positive economic trends in the United States prior to the pandemic as proof of the growth delivered by his Administration, especially through deregulation. Yet, the Trump Administration actually accomplished much less by way of deregulation than it claimed—and much less than most commentators and scholars have surmised. In this Article, we perform an original analysis of data on federal regulation from the Trump Administration’s four years and find every claim made about its deregulatory record turned out either to be wrong or significantly exaggerated. The reality is that the Trump Administration accomplished much less deregulating than it claimed during its four years, and its deregulatory actions never achieved any demonstrable boost to the economy. Indeed, the economic growth in the early Trump years had nothing to do with the Administration at all: It was the result of trends that began years prior. Why did the Trump Administration end up failing so miserably to deliver on its deregulatory claims? Legal scholarship would suggest the answer lies with the ossification thesis—the oft-invoked claim that administrative agencies have been severely hampered in their ability to adopt or change rules due to the accretion of regulatory procedures and the threat of judicial review. Yet empirical research has drawn the ossification thesis into question. Here, we offer three alternative explanations: President Trump’s prioritization of symbolism over substance; the distinctive obstacles to deregulation (as opposed to regulation); and the Trump Administration’s relative lack of professional acumen. Overall, we conclude that the nation’s recent experience reinforces the value of the administrative state’s procedural norms, which discourage ill-considered, ideologically driven agency action.