The Twin Demons of the Trump-Bannon Assault on Democracy

On January 30, 2017, President Donald Trump signed an executive order Reducing Regulation and Controlling Regulatory Costs. Then, on February 24, he signed an executive order on “Enforcing the Regulatory Reform Agenda.” Together these two executive orders constitute a severe threat to American society and the American economy. In the words of Stephen Bannon, Trump’s chief strategist, they represent a plan for “the deconstruction of the administrative state.” The purpose of the administrative state can be most simply stated this way: Unless otherwise stated in the enabling legislation, government regulation makes sense when the benefits of regulation outweigh the costs of compliance. As this paper demonstrates, social benefits consistently outweigh regulatory costs, and the regulatory state is responsive to the needs and wishes of the American people; regulation is a response to our democratic impulse. Thus, the regulatory state honors our historical and traditional constitutional values. The Trump executive orders ignore these fundamental principles. Instead of promoting the public good, they risk making it increasingly difficult, and sometimes politically impossible, to issue new rules that might be regarded as discretionary in nature. Instead, the espoused purpose of these orders is to end regulation full stop and, in the process, deny millions of Americans the benefits of government and wreak havoc on the economy. By doing so, the White House ignores the will of Congress; it ignores directives from the United States Supreme Court; and it deserts the American public. Simply, the order to eliminate regulations has the effect noted by both Thomas More in the above quotation and by Chief Justice Burger in TVA v. Hill, 437 U.S. 153, 195 (1978): It runs the risk of flattening the laws and cutting them down to the disadvantage of the public good. The order regarding so-called regulatory reform has the effect noted by Grant Gilmore: it is intended to increase regulatory oversight to the point at which due process is meticulously observed and the regulatory process crumbles of its own weight