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The One‐In, Two‐Out Executive Order Is a Zero

On January 30, 2017, President Donald J. Trump signed Executive Order 13,771, which directs each agency to repeal at least two existing regulations before issuing a new regulation (referred to as the “one‐in‐two‐out” requirement) and imposes a regulatory budget that sets a cap on total incremental regulatory costs (set at zero for fiscal year 2017). The regulatory budget concept has been kicked around for decades, while the one‐in‐two‐out requirement is more recent and has been implemented in Canada, the United Kingdom, and Australia to various extents. Legal scholars and commentators have been quick to opine on the Order, with some pointing out ways in which it is irrational or impractical and others defending aspects of the Order such as the imposition of a regulatory budget.

In this Essay, we take a somewhat different approach by evaluating how well the Order is likely to achieve its purpose of helping agencies “be prudent and financially responsible in the expenditure of funds.” Although vaguely laudable, this purpose is illaudably vague. We will therefore ground our analysis by defining the goal (or goals) of the Order according to priorities that have been adopted by prior administrations or promoted by scholars, commentators, or interest groups. For purposes of this analysis, we take no normative position on whether these end goals are desirable.

The three potential goals that we evaluate the Order against are: (1) increasing the net benefits of regulations, (2) decreasing regulatory burdens, and (3) increasing presidential control over agencies. We then compare the Order against regulatory reform efforts in other countries. We conclude that the Order is unlikely to sensibly (much less prudently or responsibly) achieve any of these goals without significant changes.