The Deregulation Deception

62 Pages Posted: 4 Nov 2020 Last revised: 21 Jun 2021

See all articles by Cary Coglianese

Cary Coglianese

University of Pennsylvania Law School

Natasha Sarin

University of Pennsylvania Carey Law School

Stuart Shapiro

Rutgers, The State University of New Jersey - Edward J. Bloustein School of Planning and Public Policy

Date Written: June 21, 2021

Abstract

President Donald Trump and members of his Administration repeatedly asserted that they had delivered substantial deregulation that fueled positive trends in the U.S. economy prior to the COVID pandemic. Drawing on an original analysis of data on federal regulation from across the Trump Administration’s four years, we show that the Trump Administration actually accomplished much less by way of deregulation than it repeatedly claimed—and much less than many commentators and scholars have believed. In addition, and also contrary to the Administration’s claims, overall economic trends in the pre-pandemic Trump years tended simply to follow economic trends that began years earlier. Why the Trump Administration failed to deliver on its deregulatory goals, notwithstanding the power that U.S. Presidents can exert over the regulatory state, may seem puzzling. The explanation cannot rest merely with the widely held ossification theory that regulatory procedures and judicial review impede attempts to make regulatory change, for the Trump Administration completed many more significant regulatory actions than it did deregulatory ones. We suggest that substantial deregulation is more challenging to achieve than it might seem, demanding strong managerial competencies on the part of a political administration. Furthermore, political leaders do not need to accomplish major deregulation to make it seem as if they have done so. The Trump Administration’s ability to exploit even modest deregulatory actions for symbolic effect provides a case study of a political strategy that we call the deregulation deception—and to which the regulatory state anywhere in the world can be vulnerable. What matters most to some political leaders will be the creation of a perception of dramatic deregulatory change that can be used to claim credit for positive economic trends, just as claims of excessive regulation can be used by politicians to shift blame during periods of economic distress.

Keywords: Administrative law, government regulation, deregulation, Trump administration, empirical legal studies, economic growth, politics, regulatory process, Code of Federal Regulations, CFR, rule making, public policy, benefit-cost analysis, law and economics

JEL Classification: K23, O43

Suggested Citation

Coglianese, Cary and Sarin, Natasha and Shapiro, Stuart, The Deregulation Deception (June 21, 2021). U of Penn Law School, Public Law Research Paper No. 20-44, Available at SSRN: https://ssrn.com/abstract=3723915 or http://dx.doi.org/10.2139/ssrn.3723915

Cary Coglianese (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6867 (Phone)

HOME PAGE: http://www.law.upenn.edu/coglianese

Natasha Sarin

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Stuart Shapiro

Rutgers, The State University of New Jersey - Edward J. Bloustein School of Planning and Public Policy ( email )

New Brunswick, NJ 08901
United States

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