The COVID-19 pandemic has resulted in many agencies suspending their regulations to assist both the economy and public health.[i] The pandemic and economic stagnancy have drawn attention to the undue burden that many regulations place on growth and development.[ii] Many have wondered how necessary various regulations are, and whether they should endure after the pandemic is over.
Suspending agency regulations have proven to be necessary in light of the challenges faced in various sectors of the economy. However, suspending a regulation is ultimately an agency action that is susceptible to judicial challenges. Many suspensions have already been successfully challenged, with courts enjoining agencies to revert to pre-suspension regulations despite the ongoing status of the pandemic. Consequently, agency suspensions have proven to be a flawed means for regulatory reform, even in the short term.
Some in Congress have caught onto the need for long term and structural regulatory reform. Such reform can only be achieved through a statutory repeal of agency regulations, though how this is to be achieved is still an open-ended question. One solution is the proposed Coronavirus Regulatory Repeal Act (CRRA), the act would create a “reverse sunset review” process where the existing regulations suspended during the pandemic would remain suspended unless restored through committees formed to revitalize suspended regulations.[iii]
The problem with such a solution is that many of the regulations that have been suspended to support the recovery from COVID-19 are fundamentally tied to the statute that requires the agency to issue the regulation. Another problem for any “reverse sunset review” solution is that it is not politically practicable. As long as the House is held by the Democrats, any solution that would indefinitely suspend a large set of regulations across the environmental, transportation, and health sectors would never pass muster. Consistent with this evaluation, the current Skopos Labs prognosis for CRRA is a 2% chance of enactment.[iv]
An alternative solution is to take a more hands-on approach to regulatory reform by closely examining suspended regulations that are suitable candidates for termination. Three factors should be taken into account in determining which regulations should not be reinstated after the pandemic. The regulation must have a significant negative impact on the economy, must have proven to not be as necessary as previously assumed, and finally, the regulation must not be so closely tied to the given agency’s statute that it would not make sense to terminate the regulation.
A starting point for determining which regulations should be slated for termination can be found at the Americans for Tax Reform, who have tracked all 846 regulations—both federal and state-level—that have been suspended to assist in recovering from the pandemic and American Action Forum’s COVID-19 Regulation Tracker which examines key federal regulations that have been suspended to promote public health and improving the economy.[v]
[i] “Trump signs order directing agencies to cut federal regulations” Reuters. May 19, 2020. https://www.reuters.com/article/us-health-coronavirus-usa-regulations/trump-signs-order-directing-agencies-to-cut-federal-regulations-idUSKBN22V2WL (Accessed September 22, 2020).
[ii] Vittorio Nastasi “Rolling Back Regulations to Combat COVID-19 Should Be Just the Start” Reason. March 31, 2020. https://reason.org/commentary/rolling-back-regulations-to-combat-covid-19-should-be-just-the-start/ (Accessed September 22, 2020).
[v] Dan Bosch and Dan Goldbeck. “COVID-19 Regulation Tracker” American Action Forum. https://www.americanactionforum.org/infographic/covid-19-regulation-tracker/