Recipe for a Regulatory Spring Cleaning

Idaho did it. Why can’t the federal government?

By James Broughel. 

"Despite bold promises from Elon Musk and Vivek Ramaswamy, skeptics doubt that the Department of Government Efficiency can deliver sweeping changes. The scope of federal regulation makes traditional reform efforts exercises in futility. But the sunset-review approach offers a solution.

Don’t ask agencies to identify every regulation they’d eliminate—a process that would take years and would get bogged down in bureaucratic procedures and legal challenges. Instead require them to justify the rules they’d keep. As things stand now, regulations will stay on the books unless someone acts to remove them, but a sunset rule would have them expire automatically unless agencies choose to keep them.

Starting on Inauguration Day, each federal agency should issue a sunset rule modeled after the Health and Human Services Department’s sunset rule from Donald Trump’s first term. These rules would insert expiration dates into all Code of Federal Regulations sections under an agency’s purview, with authority grounded in the periodic review provisions of the Regulatory Flexibility Act.

The first sunset deadline should be set about three years out—long enough for a thorough review but timed to avoid vulnerability to the Congressional Review Act, which can be used to overturn regulatory actions by a future administration. As the deadline approaches, agencies will choose what to retain through the re-codification process. Each agency would have to issue a final Federal Register notice, containing every regulation to be retained. Agency rules would continue to be subject to a sunset provision every 10 years.

Critics will claim this method is too aggressive or risks eliminating vital protections, but they misunderstand the process. Agencies retain authority to preserve necessary regulations—including those mandated by Congress. The difference is now they must make a case for doing so. Regulators will be forced to focus on keeping rules that deliver value. Deregulation sometimes requires that regulators admit mistakes, but a sunset provision means rules expire without having to point fingers or face criticism.

Idaho has proved deregulation is possible. The state repealed and revised its administrative rules code through a sunset review process in 2019. The results were dramatic. Since then, 95% of state regulations have been eliminated or simplified. The sky didn’t fall. Most regulations, when subject to genuine scrutiny, fail to justify their existence.

The federal government should learn from Idaho’s success. The result would be a regulatory system that is leaner, more efficient and responsive to 21st-century needs.

Mr. Broughel is a senior fellow with the Competitive Enterprise Institute."