The Trouble with Counting: Cutting through the Rhetoric of Red Tape Cutting

Abstract

With the issuance of Executive Order 13,771, which requires agencies to repeal two regulations for every one they propose, regulation counting has become a cornerstone of deregulatory policy in the Trump Administration. This article situates the “2-for-1” Order in a larger intellectual project that has long sought to demonstrate that the sheer quantity of regulations is causally related to declines in macroeconomic outcomes like U.S. employment and competitiveness. Regulation counting studies have provided political momentum for deregulatory policies like 2-for-1, and they will undoubtedly be used in the administration’s attempts to rationalize those policies and agency decisions made pursuant to them on judicial review. This article seeks to forestall such attempts by demonstrating that regulation counting studies do not, and cannot, rationalize deregulatory policies like EO 13,771 because they are, themselves, irrational and empirically unsound. It also explores the implications of the turn to regulation counting for the broader dialogue on regulatory reform. I argue that regulation counting starkly illustrates the limits of both cost-benefit analysis and progressive new governance regulatory reforms.

Keywords: administrative law, regulation, deregulation