A long shutdown hinders Trump’s deregulatory efforts

As the federal shutdown grinds on, President Trump’s deregulatory priorities are stuck in limbo. The longer key aspects of the federal regulatory process remain idle, the harder it will be for the president to make progress on his deregulatory goals.

At midnight on Dec. 22, 2018, funding for many federal agencies ran out, triggering a partial government shutdown. The Departments of Homeland Security, Transportation, Interior, Treasury, and several more, are largely closed until Congress appropriates more funding. From trash piling up at national parks to long lines at airports to potential for delayed income tax refunds and reduced services in the federal courts, the loss of government services is becoming more and more visible as the shutdown drags on.

{mosads}Less visible, however, is the absence of smaller and less public-facing entities such as the Office of Management and Budget (OMB), which employs about 450 people. Nestled in the OMB is a small office, the Office of Information and Regulatory Affairs (OIRA), where I was part of the career staff until last year. An office that inspires colorful language, OIRA has been called “obscure but powerful” and the “cockpit of the regulatory state.” It has many functions, but the one that garners most public attention is its role in reviewing draft regulations before they are issued to the public.

Trump has set his sights on historic regulatory reductions, issuing executive orders that direct deregulatory efforts and staffing his political posts with officials who share this deregulatory philosophy. This has dramatically reduced the flow of new regulations but hasn’t yet led to a serious reduction in regulations that were already on the books. In part, this is because “deregulation” goes through the same painstaking steps as new “regulation.” At least five of those steps are implicated by the current shutdown.

First, unfunded regulatory agencies are probably not making much, if any, progress on writing new or modified rules during the shutdown, unless those efforts are “excepted activities” under the Antideficiency Act. Most regulatory work, unless it is truly urgent, is unlikely to cross this threshold.

Second, even for funded agencies, many are subject to OIRA review, but OIRA’s staff is largely furloughed. OIRA says on its website that it “is conducting review of regulatory actions that are deemed excepted activity,” but as noted above, this is a high threshold and not business as usual. The portion of OIRA’s website that tracks regulatory reviews is being updated, and it shows very little activity since the start of the shutdown. As it rolls on, the shutdown will increase pressure on OIRA to waive its review or justify calling its staff in for “excepted” work.

Third, even rules that don’t require OIRA review have to be published in the Federal Register, which is the government’s daily official record. But, the Federal Register is caught up in this shutdown, too. Although “documents necessary for the protection of life and property” can publish during a funding lapse, most regulations won’t meet that definition. As such, the Federal Register’s daily output is down dramatically. It’s not unusual for a single daily issue to be over 1,000 pages, with all kinds of government notices advising the public of upcoming meetings, policy proposals, and other government activities. But recently it had an issue with one single page, which seems to be unprecedented, even compared with prior shutdown periods. And, because its usual website is not being refreshed, online access to this important source of public information, while still possible, is disrupted.

Fourth, the vast majority of agencies use Regulations.gov to gather public comments on proposed rules and other notices. Comment periods usually run for a set period, often 30 or 60 days. Agencies can extend these comment periods, but they are not required to, which creates uncertainty for commenters during a shutdown. Also, the back-end feed between the Federal Register and Regulations.gov, which are both run by unfunded agencies, is severed. That means that any new rules that manage to get published might not make their way to Regulations.gov in a timely manner.

Fifth, finalized rules are subject to challenge in court, something that has been particularly problematic for this administration. The shutdown has delayed at least some ongoing litigation on regulations, which shaves time off the administration’s window to get cases resolved in their favor.

{mossecondads}As these examples show, our regulatory process is highly interconnected across a number of federal agencies. Even a partial government shutdown can disable key pieces of that apparatus, and this shutdown implicates many of them.

Depending on how you view this administration’s deregulatory push, an idle regulatory process might be a feature or a bug of this shutdown. A couple of weeks of delay is not likely to dramatically interfere with the president’s deregulatory agenda. But, rulemaking takes time.

If it goes longer than Friday, Jan. 11, this will be the longest shutdown in U.S. history. Every day of a shutdown is a day the administration is not taking steps to achieve its deregulatory goals.

Bridget C.E. Dooling is a research professor at the George Washington University Regulatory Studies Center. She served as deputy chief and analyst in the Office of Information and Regulatory Affairs at OMB from 2007 to 2018. Follow her on Twitter at @BridgetDooling.