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The Wrecking Crew – Time Magazine’s Provocative November 6 Story

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By John Pearson
December 12, 2017

The cover of the November 6 issue of Time shows three large wrecking balls with the title: “The Wrecking Crew – How Trump’s cabinet is dismantling government as we know it.” A sub caption says: “While the President tweets and fulminates, his cabinet is rewriting the rules of government.” Steve Bannon is quoted as saying the cabinet appointees were selected for the deconstruction of government.

I have examined 12 Trump administration initiatives highlighted in Time’s article. In most cases, they represent efforts to overturn Obama administration policy and regulatory initiatives. Even though these initiatives are important to be sure, there is nothing in these and other administration initiatives that remotely resemble deconstruction of big government.

Time reports the Department of Health and Human Services (HHS) “rolled back a rule requiring employers to provide birth-control coverage in health insurance plans.” This appears to be way overstated. The birth control requirement is still in effect. According to the Washington Post on October 6, 2017, HHS modified the existing Obama-era regulation to exempt additional organizations from the birth control requirement if they have religious or moral concerns. HHS officials contend the change will still leave 99.9 percent of women with access to birth control through their insurance.

To me, this birth control change shows how little the Trump administration can do to attack the Affordable Care Act’s (ACA’s) essential health benefit requirement. Section 1302(b) of the ACA lists ten types of health services that must be provided in all health insurance policies (e.g., hospitalization, ambulatory services, laboratory services, preventive and wellness services, etc.). Birth control services are not on the list, but the Obama administration issued a regulation requiring birth control services as a preventive service. The Trump administration knows it can’t challenge any of the ten services listed in the legislation such as hospitalization or laboratory services. It went after one thing that could be changed because it was based on regulation rather than statute.

Here are some of the other Trump initiatives highlighted by Time:

  • Regulation of Financial Advisors: The Department of Labor (DOL) has delayed implementation of an Obama administration rule requiring financial advisors to act in a client’s “best interest” when providing advice about retirement accounts. The “best interest” rule replaces the old requirement that investment advice be “suitable.” On November 27, 2017, DOL announced it was extending the transition period for the new rules by an additional 18 months. Clearly, the Trump administration took advantage of the fact that this regulation was pending when they took over.
  • Waters of the United States (WOTUS) Rule: The Environmental Protection Agency recently proposed to delay implementation of the WOTUS rule for two years pending further study. Many farmers claim the WOTUS rule is unduly burdensome because it subjects very small bodies of water to federal environmental regulation. So far, the Trump administration has not succeeded in repealing this rule but they have delayed its implementation.
  • Campus Disciplinary Guidelines: The Department of Education has rescinded the highly controversial Obama era guidelines that apply to campus disciplinary procedures in sexual assault cases. The guidelines did not provide students with the level of due process that would apply in criminal trials. It was easy for the Trump administration to rescind “guidelines.” These were not regulations.
  • Downsizing National Monuments: The Department of Interior has submitted a proposal to downsize several national monuments created since 1996. There are a total of 117 national monuments. On December 4, 2017, President Trump announced he was downsizing two national monuments in Utah — one by 85 percent and the other by 50 percent. Opponents are expected to challenge his authority to do this in the courts.
  • Easing Fuel Economy Standards: The Trump administration has started the process to ease automobile fuel economy standards. CAFÉ (Corporate Average Fuel Economy) standards are established and regulated by the National Highway and Safety Administration. The Trump administration has an opportunity to change these standards if it goes through the regulatory process. If the standards had been written into law, then the administration could not do this.

Cabinet officers and other agency heads simply cannot legally abolish out of favor programs and agencies such as the Affordable Care Act or the Consumer Financial Protection Bureau. U.S. courts would not allow such actions. Time’s piece illustrates the Trump administration, like the Obama administration, is looking for as many ways as they can to promote the president’s agenda through administrative actions without taking too much legal risk.

To really begin deconstruction of government—to abolish agencies and programs—you must go after the underlying statutes that authorize the agencies and programs. You can also weaken an agency or program by defunding it through the budget process. The Republican Congress together with President Trump can certainly do these things if they wish. But so far, they have not done so.

Author: John Pearson recently retired from a lengthy career in the federal government where he was a program analyst. He has an MPA and a bachelor’s degree in economics. He now writes columns reflecting on his experience in government. His email is [email protected].

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