Earlier this year the small business community cheered—and voiced a collective sigh of relief—as President Trump issued an executive order requiring federal agencies to eliminate two outdated or overly burdensome regulations for every new regulation promulgated. This marks an important first step in rolling-back what has been—for so long—a rising tide of regulation. Or to use the President’s preferred metaphor, this “2 for 1” policy is essential for his plans to drain Washington’s regulatory swamp that has been bogging-down our economy. However you slice it, there is no question that the size, scope and reach of the federal regulatory state has grown exponentially in recent years. So it only makes sense to begin to go back and evaluate which regulations are worth keeping, and which are creating more problems than they are worth.
Not surprisingly, a host of progressive organizations have filed suit to block the President’s deregulatory efforts before they’ve even gotten off the ground. And while they have politically-charged reasons for wanting to keep the existing (expansive) regulatory state in place, one might fairly question whether it is even appropriate for a court to hear their challenge at this early juncture—before we even know what regulations will eliminated. Indeed, federal courts are only authorized to hear controversies that are “ripe” for review—meaning that the plaintiff must assert a real (i.e., non-speculative) imminent injury. Yet somehow a federal judge has approved of this lawsuit moving forward—which means NFIB Small Business Legal Center has been called to action.
Accordingly, just this week we filed a friend of the court brief—joining with other industry groups—to defend the President’s deregulatory policy. As explained in our brief, the “2 for 1” policy is a rational approach to the problem of over-regulation. In fact the concept of a regulatory budget of this sort makes a great deal of sense and is in many ways an extension of prior executive orders dating back to both the Reagan and Clinton Administrations calling for agencies to consider the costs and benefits of regulations anticipated to have major economic impacts. But the “2 for 1” policy further advances the goal of sensible regulation by requiring agencies to engage in retrospective review to consider the cost and benefits not just for newly promulgated rules, but for older rules that are imposing major costs on society with few if any real benefits for the public. As such, we are argue that this lawsuit is without merit and should be thrown-out, even if is ripe for adjudication.
For more on this case, check out this story covering our amicus filing.