Editor’s note: This article is part of a series on current challenges facing the federal bureaucracy from “Rethinking Our Democracy.” A joint initiative by the Center for Effective Government (@UChicagoCEG) at the University of Chicago and Protect Democracy (@protctdemocracy), “Rethinking our Democracy” produces written series on key areas of institutional and democratic reform. All other articles can be found here.
Recently, the Biden administration announced that it wanted to change a rule affecting which streams, waterways and wetlands are subject to federal environmental protections. The saga of the “Waters of the United States” (WOTUS) rule began in 2014, when the Obama administration first proposed the rule, which was praised by environmentalists and opposed by developers and farmers. During President Donald Trump’s four years in office, the agencies responsible for WOTUS, the Environmental Protection Agency and the Army Corps of Engineers, worked to roll it back. Now, President Biden’s team wants to return to a WOTUS policy akin to President Barack Obama’s.
This kind of regulatory back and forth is not unusual — new presidents often try to roll back some of their predecessor’s actions. However, the pendulum swung further under Trump, raising important questions about whether and how it should swing back.
Trump deregulated — and Biden is regulating again
Deregulation — often aimed at “undoing” Obama’s legacy — was a consistent theme of Trump’s presidency. When agencies want to deregulate, they usually need to go through an extensive process of notifying the public and allowing people to comment. However, Trump also used other tactics to undo Obama, some of them rather creative. For instance, in his first year in office, Trump, along with Republicans in the 115th Congress, “rediscovered” the Congressional Review Act, a 1996 law that had only been used once before Trump’s presidency, but which allowed Republicans to quickly and legally rescind 15 regulations that were issued at the end of Obama’s presidency.
The pendulum began to swing back, undoing parts of Trump’s legacy, even before he left office, when interest groups (mostly on the left) challenged the president’s deregulatory efforts. They were largely successful. As WOTUS shows, the Biden administration is also taking action to roll back Trump’s legacy. And whenever Republicans next take the White House, the pendulum will swing again.
The pendulum has consequences
This back-and-forth means that government agencies spend limited resources trying to reverse the work of previous administrations. Often, the same career officials are responsible for both the doing and the undoing — and they can get demoralized and leave government service.
When agencies address new problems, it is in areas that the current administration selects, which will almost by definition differ from those of the previous administration, if it was run by the other party. This unevenness makes it hard to hire and keep staff with the right expertise. While agencies can rent the expertise of private contractors, outsourcing hollows out the government’s own long-run capacities.
It isn’t only the government that wastes resources. Since 2014, advocates and opponents of WOTUS have spent a lot of money fighting in court. Businesses don’t have the predictable environment they need to make long-term plans. And citizens may not understand the nuances of policy fights, but they can probably get a sense of the partisan bickering that the back-and-forth creates, perhaps exacerbating low levels of trust in government and weakening respect for the law.
Civil servants are the last defense against lawless presidents. No wonder Trump didn’t trust them.
Congress could slow the pendulum’s swing — if it wanted to
It is probably impossible to stop the swing of regulation and deregulation. And stopping the back-and-forth would make government less responsive, since the actions are being taken on behalf of a duly elected president following through on campaign promises.
Still, if Congress wanted to, it could slow down the pendulum by making more of the big policy calls itself. That would ease the pressure on agencies to use the regulatory process to tackle major policy issues such as climate change. Agency rules would no longer be a substitute for duly passed laws, as they often are now. Instead, they would fill in the details of the broad policies passed by Congress. Yet this would require congressional actions that are unlikely to materialize.
Alternatively, more use could be made of “independent agency” structures, where leaders are appointed to fixed terms that are staggered across presidential administrations. That is how the Federal Reserve and Federal Communications Commission work. Evidence suggests that independence is an effective buffer against presidential influence. For example, transforming an agency like the EPA into an independent body would enable it to make environmental policy based on the best available science and without consideration of which party is in the White House.
Structural reforms are difficult, however, and they require a political champion, one they are unlikely to get in the White House, regardless of whether it is occupied by a Republican or a Democrat. A final possibility is to move away from zero sum politics, where one side or the other “wins,” to negotiated rulemaking, or “reg neg.” This is a process of creating regulations where affected stakeholders get together and write a rule jointly. Afterward, participating stakeholders are discouraged from litigating over the rule.
Reg neg has been around for a long time, but it has largely fallen out of favor. It is a painstaking process — even more so than the arduous notice-and-comment process that agencies typically follow. And it doesn’t always work; opposing interests are not always able to reach a compromise. Scholars have learned a lot about how to improve the implementation of reg neg and its less onerous, more informal cousin “reg neg lite,” making it more feasible than in the past.
The back-and-forth movement of the regulatory pendulum is a product of the deeper partisan polarization that permeates contemporary politics, but it is possible that polarization might ease if the swings were less wild.
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Rachel Augustine Potter (@raugpott) is associate professor of politics at the University of Virginia and author of “Bending the Rules: Procedural Politicking in the Bureaucracy” (University of Chicago Press, 2019).