Trump’s “Two-For-One” Regulation Order Is A Rabbit Hole

If you issue one, then get rid of two. That’s the gist of an order from the President on January 30. Moreover, it says the cost of the new regulation must be offset by the cost “savings” of eliminating the two. This legal update from Mayer Brown analyzes what this might mean in practice, acknowledging that it’s no easy feat. Even with the aid of White House interim guidance issued on Feb. 2, many ambiguities remain. Given all that, the writers address three important questions that will arise in any attempt to field the two-for-one order: What actions are subject to it? When would compliance be “prohibited by law”? And how would an agency subject to the order measure cost? With regard to the last – a question that in one form or another has haunted the regulatory debate for decades, because it leads inevitably to the complexities of cost-benefit analysis – the interim Guidance explains that cost should be measured as something called the “opportunity cost to society.” That, the Mayer Brown attorneys write, “is a soft, amorphous and inherently subjective analysis that appears to bear little relationship to the actual dollar cost of a business to comply with a regulation.” The writers predict there will be many questions about this order, and they note the Interpretive Guidance does as well: It instructs agencies who have them to call the Office of Management and Budget. “The OMB,” they conclude, “is likely to receive many calls over the next year.”