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This is a very broad question (and one that will change over the next few weeks and months when the administration and congress weigh in), and could be overly subject to opinion.

But: is this new Executive Order really legislation from the Executive branch that is not allowed to legislate? And/or is this "meta-legislation"? And does that matter?

President Trump signed an order Monday aimed at cutting regulations on businesses, saying that agencies should eliminate at least two regulations for each new one.

The White House later released the text of the order, which added that the cost of any new regulation should be offset by eliminating regulations with the same costs to businesses. It excluded regulations regarding the military. Trump wants to scrap two regulations for each new one adopted - The Washington Post

Could Congress reverse it with their own legislation?

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An executive order is a way of memorializing in writing Presidential authority that is either expressly granted to the President by the constitution or statute, or is left to President by implication either from a lack of guidance or as a result of the structure of the constitution and historical precedent.

Congress has wide discretion to legislate in a manner that limits the power to make executive orders and pass regulations, and can mandate that the administration issue regulations in a certain area or refrain from issuing regulations in a certain area where the Executive branch is denied discretion or denied the right to set overarching policies as opposed to deciding things on a case by case basis at a lower level in the bureaucracy.

In principle, Congress could so micromanage the executive branch that it would be unconstitutional, but that is basically a hypothetical concept with no meaningfully well defined boundaries. The hard cases involve grants of regulatory authority subject to further approval by a subpart of Congress like a committee, as opposed to a full fledged act of law (something called a "legislative veto") which has dubious constitutional status despite being common.

The main "meta-legislation" governing regulations in general in the federal government is the Administrative Procedures Act.

Subject to the limitations imposed by Congress, a President can take any approach desired to making and changing regulations, but the APA does impose meaningful limits, in particular, on how and how fast, existing regulations can be changed, which may make it hard to eliminate two regulations for each new one that the administration wants to pass or is mandated by Congress to adopt to implement statutes it has passed.

But, because a "regulation" is not a meaningfully defined unit, it is a pretty meaningless edict. You can satisfy it simply by cramming two sections of a bunch of regulations into one, essentially reformatting it for political cosmetics rather than making substantive changes, or by incorporating something else by reference. So, the 2 for 1 EO is basically an aspirational statement of policy and attitude more than it is a meaningful constraint. No one could sue the administration or invalidate a regulation it passed because it didn't comply with this EO.

  • Thanks, very interesting. No surprise to me that many of these EOs are smoke. – BlueDogRanch Jan 31 '17 at 20:13
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Whether or not any order is "really" legislation from the Executive branch is a matter of opinion and interpretation, just as it is a matter of opinion and interpretation as to whether court rulings are "really" legislation. There is an essential difference between legislation and other forms of law-making, that regulations must be under specific authorization by act of Congress. So the immigration ban pointed to specific authorizing legislation passed by Congress, and any specific regulations that emerge from that order will likewise refer to particular authority. Any dictate that exceeds that authority may be overturned by court (or not... judicial interpretation is optional).

However: there is no quantifiable unit "regulation". Actually, they are called rules. So there can be no "two for one" regulation.

For reference, here is the text of the order. It defines "regulation" as

an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency...

Perhaps this refers to a docket number published in the Federal Register. Also note that the actual order requires identifying two regulations for each one added -- not eliminating, just naming.

  • Not all regulations have a specific authorization by act of Congress. For example, the power of the President to recognize (or not) foreign states is done via regulation but has been long practiced even in the absence of specific legislative authorization. Regulations can be adopted anytime a statute leaves the President some discretion, even implicitly. – ohwilleke Jan 31 '17 at 14:09

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