James D. Schultz is a CNN legal commentator and chair of the Government and Regulatory practice at Philadelphia-based law firm Cozen O’Connor. He served as senior associate counsel and special assistant to the president in the Office of White House Counsel during the Trump administration. Follow him on Twitter @jim_schultz. The opinions expressed in this commentary are his own. View more opinion at CNN
(CNN)The orders were clear.
James D. Schultz On the first day of the Trump administration, I joined 24 other lawyers in the White House, where we were charged with helping fulfill President Donald Trump’s promises to the American people.The President wanted to unleash American ingenuity and stimulate economic growth by rolling back burdensome and, in some cases, crippling regulations that were allowed to run amok during the Obama administration. “The prior administration piled up more than 600 major new regulations — a cruel and punishing regulatory burden,” Trump said last month. Forbes found in 2016 that the Federal Register contained 3,853 rules and regulations, 629 of which were flagged by agencies as having notable effects on small businesses. Our team went to work in the Office of White House Counsel immediately, and on January 30, 2017 — only 10 days after President Trump took office — he issued Executive Order 13771, which requires agencies to offset the cost of any new significant regulation with at least two deregulatory actions. Read MoreThe administration launched a massive regulatory relief campaign and for every new federal regulation, seven have been cut, according to the administration — exceeding the target laid out in Executive Order 13771 by a wide margin. These cuts translate to an increase in real incomes by upwards of $3,100 per American household after 5 to 10 years, according to estimates from the Council of Economic Advisers. Under Trump, the Federal Register, the daily depository of rules and regulations, has been nearly 25,000 pages shorter than what it was under Obama.Opinion: The Republican Party has a tough choice to makeFormer White House Counsel Don McGahn, who was instrumental in this deregulation effort, understood as well as anyone that, at its core, this was an issue of the core principles articulated so clearly in the Declaration of Independence and Constitution — free speech, due process and individual liberty.”The greatest threat to the rule of law in our modern society is the ever-expanding regulatory state,” McGahn said in 2017. “And the most effective bulwark against that threat is a strong judiciary.” McGahn understood that regulation and the courts are inextricably linked. The vast expansion of regulatory authority, both in scope and deference, began decades ago when Congress ceded authority to federal agencies. For far too long, agencies operated unchecked by the courts and were free to investigate companies and private individuals without due process. For example, in a case that went all the way to the Supreme Court (Sackett v. Environmental Protection Agency), a couple in Idaho, Mike and Chantell Sackett, in 2005, purchased two-thirds of an acre on which they planned to build a house. Shortly after they began clearing the land, the EPA issued a compliance order to stop work claiming the parcel was, in fact, a wetland and could not be developed. The EPA, without a hearing or any other sort of due process, threatened the Sacketts with fines of up to $75,000 a day if they didn’t comply. In 2012, the high court ruled that, indeed, the EPA was subject to the Administrative Procedures Act and that landowners could challenge the agency in court. The EPA finally withdrew its compliance order against the Sacketts in March 2020, according to Bloomberg Law. What Steve Bannon arrest reveals about 'building the wall' This was an important ruling for individual liberty. But it should never have taken the Sacketts a Supreme Court-imposed order to be able to challenge the EPA. The moral of this story is that regulations without due process tie up the resources of private individuals and businesses. They stifle entrepreneurship and destroy companies. Jobs disappear. Goods and services become more expensive. Regulations come with real consequences for real people. The President understands this, which is why one of his priorities was to appoint judges who, as McGahn said, are “committed originalists and textualists,” will uphold the rule of law and not legislate from the bench. Trump made the appointment of judges and justices a key issue during his 2016 campaign. He even released a list of potential Supreme Court nominees after the Republican primary. Deregulation doesn’t happen without judges and justices committed to upholding constitutional principles. The President knew what had to be done and McGahn implemented the plan.To date, the Senate has confirmed 203 federal judges nominated by President Trump, including two Supreme Court justices. The shackles have been removed from the private sector. When Covid-19 hit, the President signed an executive order, designed to jumpstart the economy, directing agencies to “remove barriers to the greatest engine of economic prosperity the world has ever known: the innovation, initiative and drive of the American people.” Get our free weekly newsletter
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President Trump said he was going to reduce America’s regulatory burden and he did it. He promised to nominate judges who would uphold our founding principle of individual liberty. He did that too.In an election season when the President’s detractors are making promises and offering platitudes, we should remember that Trump delivered on his promises, not just for his party but for the American people.