Trump’s 1-in-10-out executive order threatens necessary regulations and existing constitutional norms.
What should we make of President Donald J. Trump’s Executive Order 14,192, “Unleashing Prosperity Through Deregulation,” issued on January 31, 2025? It was hardly a surprise. Since the Reagan Administration, when regulatory review was first institutionalized as a White House function, each administration has put its own stamp on the regulatory review process. On its face, Executive Order 14,192 looks a great deal like the regulatory review executive order that President Trump issued in the early days of his first term, Executive Order 13,771. But I believe that the differences are significant and profound, and that the more recent of the two executive orders is much more destructive of the system of rights and protections that our regulatory system has provided for the public since the New Deal.
The basic structure of Executive Order 14,192 is almost identical to Executive Order 13,771. They both contain a requirement that more regulations be rescinded than are issued. They both institute a cap on the incremental cost of new regulations. And they both vest a great deal of authority in the director of the Office of Management and Budget (OMB) to gatekeep the regulatory process.
Despite cosmetic similarities, the new Trump regulatory review executive order is a much more destructive force. Start with its regulatory cap. The first Trump executive order required that two regulations be rescinded for every one issued, whereas the new order requires the ratio to be 10-to-1. The impact of this change in ratio is much greater than just the fact that 10 is five times as much as two. As we saw in the first Trump term, the agencies played some games to enable the boss to say that he had achieved his deregulatory goals. As James Goodwin described, the impact of the first Trump executive order was “apples in, oranges out.” Such gameplaying, however, is much harder with a 10-to-1 ratio. Such an oppressive deregulatory burden—remember that it takes as much process to rescind a regulation as to issue a new one—is a barely-concealed direction to cease any affirmative regulatory agenda.
If the shift from a 2-to-1 ratio of deregulatory actions to regulatory actions was not limiting enough, the new order tightens the regulatory net in another manner. Whereas Executive Order Executive Order 13,771 set a regulatory cap on the total incremental cost of all regulatory actions at zero, Executive Order 14,192 sets the cap at “significantly less than zero.” It is not clear how much less is “significantly less,” but it will be determined by OMB Director Russell Vought in the coming days. Remember, Vought is a co-author of Project 2025, the policy agenda that described one of its core tenets as a promise to “dismantle the administrative state,” so it is probably safe to assume that “significantly less” will be given a robust definition.
Even more concerning, however, is what the order may portend about the Administration’s intent to comply with the strict process requirements of the Administrative Procedure Act (APA). In Executive Order 13,771, agencies were directed when rescinding regulations to “do so in accordance with the Administrative Procedure Act and other applicable law.” In Executive Order 14,192, however, the OMB director is designated as the arbiter of compliance with the APA and applicable laws. In light of the fact that OMB Director Vought has articulated a broad vision of the unitary executive theory, it is not reassuring that he has seemed to shift responsibility for interpreting constraints on the President’s authority from agency general counsel to himself.
To fully understand the Trump Administration’s vision of the regulatory process, it is necessary to put Executive Order 14,192 in the context of three other actions that the Trump Administration has taken. These actions together raise questions about whether the Administration intends to effectively walk away from its constitutional responsibility to implement the laws that Congress has entrusted to it.
First, the public can no longer expect that the Trump Administration will enforce many or even most of the regulations that remain on the books. By eviscerating the federal workforce, laying off tens of thousands of federal employees already, the Administration will simply lack the staff necessary to enforce the law.
Second, the scope of Executive Order 14,192 is broader than Executive Order 13,771 when viewed in light of the Administration’s seizing political control of agencies previously treated as independent. Whereas agencies such as the U.S. Securities and Exchange Commission, the National Labor Relations Board, and other adjudicatory agencies have been tasked with pursuing their own regulatory agendas, the Trump Administration’s executive order, “Ensuring Accountability for All Agencies” makes clear that the Administration is ignoring decades-old U.S. Supreme Court precedent and will exert its political will over these agencies, including over their regulatory agendas.
Finally, the Trump Administration issued another executive order that sets forth a separate chokehold on the regulatory process. In this order, the President directs agencies to prepare to modify or rescind any regulations within their authority that meet vaguely worded standards. One such nebulous standard is whether the regulation is unconstitutional or “constitutionally difficult.” In addition, agencies are directed to identify regulations that pose “undue burdens” on businesses. Although such direction may seem like a strong but not unprecedented effort by one administration to align the “administrative state” with its policy preferences, this executive order is unprecedented. It calls on agencies not just to make lists, but to forbear enforcing regulations on their lists. The Supreme Court long ago made clear that while agencies may make case-by-case decisions not to enforce a regulation, it is quite a different matter when an agency nonenforcement is so extreme as to constitute an abdication of its responsibility to execute the law.
Taken together, these executive orders and changes to the regulatory review process do not describe a policy realignment—they describe an end run around the law and Congress that is likely to make the American people less safe, less prosperous, and less free from the whims of billionaires and this Administration.
