The Truth Shall Set You Free
Acting in bad faith is reversible.
Trump Will Want to ‘Confess Error’
The notion of a government bureaucracy using litigation as a weapon, cognizant of the disparity in resources between the two parties, is terrifying. You don’t have to be right. You don’t have to follow the law. You can use a stroke of the pen to attack some person, individual or corporate, and wreak havoc.
Apparently, intent matters.
If the pretext for invoking a rule or taking an action contradicts the statute, then Trump can expedite the reversal of the rule or action.
‘We’re in a catch-me-if-you can era of governance. Regulators stretch their authority knowing that legal challenges take years, during which their desired outcomes can take root. President-elect Trump can fast-track reversal of the Biden administration’s excesses and beat rule-makers at their own game.
‘In 2015 Gina McCarthy, then administrator of the Environmental Protection Agency, told TV host Bill Maher that whether an Obama rule regulating coal-fired power plants survived Supreme Court review was irrelevant. The litigation had taken three years, and during that time companies had been forced to make long-term investment decisions in compliance with EPA demands.
‘That same malign intent is evident in Mr. Biden’s “whole of government” approach to policy. His administration squeezes industry targets by using laws and agencies in ways Congress never intended. Regulators have admitted as much, both in public and in internal planning documents that have been made public.
‘Agencies aren’t permitted to lie about their reasons for imposing a regulation—a doctrine known as the rule against pretext. Yet it happens. EPA Administrator Michael Regan, for instance, has shown a willingness to use authorities unrelated to climate change to force closure of plants to achieve climate goals. This presents the new administration with an opportunity to rein in some of the most egregious Biden-administration overreaches before the rules achieve their intended outcomes.’
In the private sector, accountability is everything. Either the dogs eat the dog food or they don’t.
There is no accountability in the federal bureaucracy.
Is it even possible?
‘"This is about restoring self-governance and accountability in America as well. Elected leaders, if they make the wrong decisions, voters have a great choice. You can vote them out and remove them. Most of the people making these decisions from health care to the Department of Defense are failing on effectiveness because they have no accountability. Historically, it's been the view of many scholars to say that those people could not even be fired. Now we take a different view with the environment the Supreme Court has given us in recent years, and we're going to use that in a pretty extensive way to move quickly," he explained.’
IBM CEO on Trump: ‘Less regulation, more innovation’ is a win for business
Regulatory certainty enables innovation and risk-taking.
‘Krishna believes a lighter regulatory environment will prompt clients to make investment decisions more quickly and also lay the groundwork for a more favorable deal environment.
‘“If we have more certainty on the outcome, then we are willing to lean into things like M&A … If the regulatory process and antitrust are going to be more certain, that allows you to take more risk,” Krishna added.’
The Virginia Model for Regulatory Modernization
Virginia is well on its way to achieving its regulatory reform goals. Technology is making an impact.
‘As these reforms play out, one state stands above the rest. In his first year in office, Virginia Governor Glenn Youngkin created an Office of Regulatory Management (ORM) to lead regulatory modernization in the Commonwealth of Virginia. He tasked ORM with enhancing transparency and efficiency in both regulation and permitting. And he set the ambitious goals of reducing regulatory requirements by 25 percent and achieving a substantial shortening of permit processing times.
‘Now, two years later, Governor Youngkin’s administration has achieved such extraordinary success that other states and reform-minded federal officials are sitting up and taking notice. A few developments over that period have been particularly noteworthy.
‘On the regulatory reduction front, ORM estimates that changes to date are saving Virginia citizens over $1.2 billion per year. Virginia has taken an innovative approach to regulatory reduction. Virginia agencies can achieve credit towards the 25 percent reduction goal by cutting words, but they can also get credit by reducing—but not eliminating—burdens. For instance, when the Virginia Board for Barbers and Cosmetologists reduced cosmetologist training hours from 1500 to 1000, it received a 33 percent credit, multiplied by the associated requirements.’
What Does a Second Trump Administration Mean for AI Regulation?
Will states be able to step into the void left as Trump unwinds Biden’s executive orders on AI, or will the new Administration take steps to claim priority for AI regulation?
‘The second Trump administration will likely continue to focus on deregulation and private-sector innovation. The removal or alteration of key executive orders – like those promoting AI ethics, transparency, and fairness – would reduce the regulatory burden on businesses, allowing for greater flexibility and faster deployment of AI technologies. However, states are not without power in this space. Companies should expect an increase in state regulatory efforts, and businesses should stay informed about the potential shifts at a state-by-state level. Likewise, AI business practices that otherwise constitute unfair or deceptive trade practices will continue to be policed both by the Federal Trade Commission and the plaintiffs’ bar. All in all, the next four years will likely bring regulatory change, but perhaps not the extinction that some commenters have speculated.’