The Trump Administration’s new 1-in-10-out executive order is more flawed than its predecessor.
In January 2017, President Donald J. Trump issued his “1-in-2-out” executive order that required agencies to repeal at least two existing rules before issuing any new rule and banned the imposition of new net regulatory costs. Eight years later, President Trump has issued a new executive order with the same basic features, but more—instead of requiring that two rules be repealed for any new rule, the new order requires that ten be repealed. Given this blast from the past, it is worth asking whether the 2017 order was worth plucking out of the dustbin of history.
The short answer is no. As we described in an essay at the time, the 1-in-X-out concept and the ban on new net regulatory costs do not make sense under any normative theory one might want to adopt.
First, the requirements in these executive orders are poorly structured to promote net benefits, which is—ostensibly, at least—the official goal of most federal regulatory policy since the Reagan years. The most obvious reason for this is that the requirements do not prioritize net costly rules for repeal and make it more difficult to adopt rules with net benefits.
Second, the requirements are not even well structured to reduce regulatory burdens. Nothing in the executive order requires agencies to prioritize the most burdensome rules for repeal. Moreover, the 1-in-10-out requirement threatens to entangle agencies in a morass of repeal efforts of middling value but that nonetheless must go through the entire administrative process and will often be challenged in court.
Finally, the executive order does not help the White House assert control over agencies. Primarily, they constrain the actions of Trump appointees at agencies, who are presumably loyal to the Administration’s agenda. As we wrote eight years ago, “imposing direct, formalistic, and inflexible mandates on agencies reduces the operating room of exactly those political appointees that Presidents typically seek to empower, without any grounding in the relative strengths and weaknesses of agencies and OIRA in promoting the President’s agenda.”
These were conceptual points, but subsequent experience has largely vindicated our predictions. The first Trump Administration’s deregulatory push produced, at best, mixed results. Cary Coglianese, Natasha Sarin, and Stuart Shapiro have argued that the Administration’s claims of sweeping deregulation were overstated, pointing to the modest overall reduction in regulatory burdens. Many repeals were procedural rather than substantive, and the Administration often struggled to quantify actual cost savings. By contrast, Anthony Campau, who served in the first Trump Administration’s Office of Informational and Regulatory Affairs, has defended the policy as a meaningful constraint on administrative overreach. Although we need not adjudicate that debate here, the fundamental structural problems of the “1-in-X-out” approach remain clear.
Deregulation is not inherently problematic. Thoughtfully designed reforms can reduce unnecessary compliance burdens while maintaining protections for health, safety, and the environment. Blunt instruments like the 1-in-10-out rule, however, impose rigid constraints that ignore regulatory quality. The new executive order doubles down on this flawed approach, requiring agencies to jettison a vastly greater number of existing rules.
The sheer scale of the repeal requirement will likely force agencies into hasty, indiscriminate rollbacks that generate legal uncertainty and administrative bottlenecks. Agencies will expend more effort identifying and eliminating rules—regardless of their actual costs or benefits—than on crafting effective policy. The order’s directive to reinstate the 2003 version of the White House Office of Management and Budget’s Circular A-4, which provides guidelines for conducting benefit-cost analysis across agencies, also signals a retreat from recent efforts to improve the methodology that supports rational rulemaking policy.
If anything, the current iteration of this misguided regulatory approach is poised to fare worse than its predecessor. The escalation to ten offsetting repeals per new rule all but ensures that agencies will face insurmountable hurdles in issuing new protections, even when clear net benefits exist. In other words, the public will not get net beneficial regulations that respond to current problems and will not see meaningful removal of burdensome preexisting regulatory requirements. Unfortunately, that may be exactly the point.
