Trump Tries to Cut Back the Regulatory Kudzu

In the 1930s, the federal government subsidized the planting of kudzu, a fast-growing Asian plant that reduced the soil erosion problems plaguing farmers in America's more humid states. In all, it is said some 70 million seedlings were planted under the government program. Kudzu was a regulatory intervention to address a serious problem. It's also a perfect illustration for how well-meaning regulations—some of which are facing scrutiny in Washington today—can take on lives of their own.

Kudzu vines grow so rapidly, as much as 60 feet in a growing season or two feet a day, that soon those eroded fields that had been unfit for the plow became vine-covered fields that could not be plowed.

The vines recognized no fence lines. Along with farmers' fields, everything was fair game, including telephone poles, abandoned homes and barns, and even unpaved roads and byways. Eventually, in 1997, after 40 years of kudzu conquest, Congress placed the vine on the federal noxious weed list. It is now being poisoned. In spite of the effort to take back the soil, kudzu still prevails in many areas.

President Trump has now decided to cut back on regulatory kudzu, a vine of red tape that grows even faster than kudzu: The many rules that have been planted over the years, some of which have grown so fast that they have stifled the very economy they were supposed to protect, or have grown over economic fence lines into places they were never supposed to be.

Trump's new rule stating that two old regulations must be removed for any new one places a heavy burden on regulators, and it has the potential to lighten the regulatory load we all carry. In recent years, the number of Federal Register pages that announce new and modified rules has grown by more than 200 pages per day, 365 days a year.

It's high time we cut back some kudzu. But there's more to the Trump executive order. When the cost of planting the new rule is weighed against the cost relief of pulling two different rules, the net difference must be no more than zero. In other words, the implied "regulatory budget" is zero. Of course the entire two-for-one process will be subject to the Administrative Procedures Act, which means that due process and opportunities for citizens to respond will be preserved.

The Trump two-for-one rule imposes meaningful constraints on the regulatory process and makes the United States a member of the growing two-for-one regulatory community which includes Canada, Australia, and the United Kingdom.

This is not to imply that implementation of the new rule will be easy, or that old kudzu should be plucked willy-nilly. We can be sure the regulated will not go quietly into the night. Each regulation on the books provides benefits—sometimes broadly, but always to some special interest group or another. Otherwise, the rules would not be on the books. Indeed, their effects on certain groups can be so large that we can expect to see major struggles when the regulatory agencies begin to pick and choose just which existing rules are to be yanked out of the ground.

But while the new rule will make a difference, we must recognize that regulation doesn't start with regulators. Congress, after all, is the ultimate regulator. New rules are spawned by statutes. Granted, regulators are in the business of regulating, and their budgets grow with more activity. Even so, there are limits to their "boldly go where no man has gone before" activities.

Regulator behavior occasionally becomes so obnoxious that Congress steps in and practically shuts the agency down. This happened with the Federal Trade Commission during the Carter administration. The agency lost its appropriations and had to operate on tentative continuing resolutions that brought constant oversight.

Sometimes Congress just eliminates an agency entirely. We no longer have an Interstate Commerce Commission regulating trains, trucks and pipelines. And federal regulation of air fares died with the Civil Aeronautics Board in 1985.

Two-for-one is a start. Maybe Trump will be successful in stopping Congress from planting so much regulatory kudzu in the first place.