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Two-for-one regs purge? Don’t bet on it

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in Employment Law,Human Resources

In one of his first acts after taking office, President Trump signed an executive order declaring that for every regulation federal agencies enact, two other regulations must be eliminated. Great news for overburdened HR departments, right?

Maybe not. A dramatic reduction in the regulatory burden may be largely illusory, for several reasons.

First, there are questions about whether the executive order would affect any regulations issued by independent agencies such as the EEOC. The commission’s membership, with both Republicans and Democrats, won’t change until later this year. Result: EEOC regs may not be subject to the two-for-one rule until then.

Second, already at least one lawsuit has been filed challenging the legal authority of the president to decree a two-for-one rule.

Advocacy group Public Citizen, the Natural Resources Defense Council and the Communications Workers of America union filed one such lawsuit in early February in the U.S. District Court for the District of Columbia. The suit claims it is unconstitutional to issue a blanket order to reduce the number of federal regulations. Reason: Federal agencies are required to enforce laws passed by Congress. Forbidding them to carry out their regulatory mission essentially infringes on Congress’s authority to legislate.

Finally, the executive order may be impractical to implement.

Even if an executive branch agency such as the Department of Labor wanted to reduce regulations, the two-for-one rule would make the process too cumbersome. For example, in addition to calculating the cost of the change for employers, a DOL regulation amending the definition of “child” for FMLA leave purposes would require concurrently identifying two other regulations of equal financial cost to eliminate.

Experts on the federal regulatory process—and those who are cynical about federal bureaucracy in general—predict that two-part exercise would slow progress to an even more glacial pace than usual.

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