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Not Triangulation but Regulation

Obama's answer to a GOP Congress. 

By From the December 2010 - January 2011 issue

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President Obama already laid down the marker, in early October. His approach to new Republican strength on Capitol Hill, he said, will be nothing but "hand-to-hand combat." The combat, however, may not take the form of traditional legislative battles. Again and again, news stories in the fall cited Obama officials saying blandly that they will "use executive authority when blocked by Congress." None of the reports seemed to find these statements remarkable. Yet if officials in the Reagan or Bush administrations had spoken that way, Newsweek would have been warning of "an imperial presidency" and the New York Times would be hyperventilating about a proto-dictatorship. Yet Republican teams' inclinations run to less regulation rather than more, and the Obama regime favors executive actions far more likely to limit freedom and seriously intrude on daily American life.

Indeed, the Obama team's disdain for small-r republican norms is breathtaking. Even when enjoying huge Democratic congressional majorities, this president already had pushed rule-by-administrative-fiat to a stunning degree. What awaits, when Obama sees no chance of legislative success, is sure to be an audacious expansion of claimed executive powers -- unaccountable, unlimited, and quite arguably unconstitutional. (Whether the courts recognize it as unconstitutional will be a close call, based on how effective Republican senators are at blocking Obama from seeding federal courts with radical leftists.)

It's not only conservatives who recognize this administration's aggressiveness. OMB Watch, a respected but decidedly left-leaning nonprofit that tracks regulatory affairs full time, quite approvingly reported this in September: "In stark contrast to the George W. Bush administration, the Obama administration… has been far more active in pursuing its rulemaking responsibilities." And: "[Environmental Protection Agency] Administrator Lisa Jackson...has set an active agenda.… At the Department of Labor, [there have been] efforts to jumpstart a rulemaking engine…." The NHTSA [National Highway Traffic Safety Administration] engaged in "a minor surge of rulemaking." And so on.

No wonder an October 26 report by the Heritage Foundation succinctly concluded that "the burden of regulation on Americans increased at an alarming rate in fiscal year 2010. Based on data from the Government Accountability Office, an unprecedented 43 major new regulations were imposed by Washington. And based on reports from government regulators themselves, the total cost of these rules topped $26.5 billion, far more than any other year for which records are available."

Those costs are just for the new rules. Overall, as Clyde Wayne Crews of the Competitive Enterprise Institute (CEI) reported, "a very rough extrapolation from an evaluation of the federal regulatory enterprise by economist Mark Crain estimates that annual regulatory compliance costs hit $1.187 trillion in 2009.… Regulatory costs are equivalent to 63 percent of all 2007 corporate pretax profits of $1.89 trillion.… Regulatory costs exceed estimated 2009 individual income taxes of $953 billion by 25 percent." It's all so overwhelming, in fact that U.S. Chamber of Commerce president Thomas Donohue in a recent column called it "a regulatory hurricane."

Of course, not every regulation is more harmful than helpful, and not every new rule is an abuse of power. But when bureaucrats consistently push to and beyond the outer limits of what Congress might possibly have intended, and when an administration implements by fiat what Congress repeatedly has considered and refused to pass, the collective diminution of freedom becomes alarming.

"THIS ADMINISTRATION is unique in the scope of EPA's overreach," said Rosario Palmieri, a vice president at the National Association of Manufacturers. "For example, the previous administration finalized a rule on a new ozone standard that was extremely costly. This administration re-opened the rule and decided to make it even more stringent -- unnecessarily so -- and a new study we've commissioned says the new, more stringent ozone rule will cost us 7.3 million jobs by 2020."

With so many regulatory abuses occurring on so many fronts, it's hard to pick just a few to focus on. Nevertheless, here are some of the most egregious (some of them by quasi-independent agencies, but controlled by Obama appointees), both already enacted and/or pending:

Oil drilling: This one has been well covered in the wake of the BP oil spill. The moratorium on deep-water drilling, plus the slowdown on drilling permits in all depths of water that continued even after the moratorium was technically lifted, cost Gulf Coast states at least 6,000 direct jobs -- a prospect which, by the account of Louisiana governor Bobby Jindal, was met with utter nonchalance by Obama himself. "He said, governor, if people lose their jobs because of the moratorium, they can file a BP claim." Asked what would happen if BP wouldn't pay, Obama reportedly said: "Don't worry, governor, they can file an unemployment claim."

Card Check: Democrats failed miserably in legislative attempts to eliminate the secret ballot in union organizing elections, so now the National Labor Relations Board is poised to accomplish the same thing by other means. Called "remote electronic voting," it effectively would allow union representatives to descend on a worker and "ask" him to use his personal computer or other device to vote in favor of unionizing his workplace. The NLRB didn't even allow a normal comment period, but just announced its intention to issue the rule while asking for "vendor" or "industry comments only." Explains Vincent Vernuccio of CEI: "Not only does this circumvent Congress, but it even circumvents the regular notice-and-comment procedures." (Even worse, remote electronic voting isn't safe: when the D.C. Board of Elections and Ethics ran a test of its planned remote electronic voting system for municipal elections, a group of college students promptly hacked into it and caused it to play the University of Michigan fight song every time a vote was cast.)

Ethanol: Even most environmentalists now concede that corn-based ethanol use is probably a net-minus ecologically (not to mention what it does to food prices and availability). Yet in October, the EPA issued a new rule allowing/prompting gasoline companies to use a fuel mix of 15 percent ethanol instead of just 10 percent. As the Wall Street Journal explained, this is horrible on numerous levels: "Ethanol is highly corrosive and can damage engines… [and] is more expensive than gas, gets worse mileage than gas, [and] increases carbon emissions more than gas does."

Biomass industry: Also along the lines of harming the environment in the name of helping it, EPA is proposing strict emissions limits on boilers at wood-burning plants. The Biomass Power Association complains this would "endanger" the "entire renewable energy industry" -- exactly the form of industry environmentalists supposedly favor. Congressional opposition to the EPA proposal has been bipartisan, with 45 Democrats joining 61 Republicans signing a strong letter of protest.

Consumer product "safety": The Consumer Product Safety Improvement Act of 2008, intended to protect American children from Chinese-made toys with dangerous lead levels, already was a nightmare so over-broad as to force mom-and-pop shops to close, harm charity auctions nationwide (because so many utterly safe products can't be resold), and even shut down entire product lines of motor-scooter companies (as if children are going to ingest lead from gnawing on a scooter frame!). But the Obamaite Consumer Product Safety Commission has repeatedly adopted rules even more burdensome than Congress or common sense would dictate, creating a compliance nightmare that is weighing down the entire economy like… well, like lead.

Ear "safety": The Occupational Safety and Health Administration understandably requires that workplaces limit their employees' subjection to dangerous noise levels. For years, OSHA allowed businesses to use the simple expedient of earplugs or earmuffs to help with this problem. Suddenly, as reported by Keith Smith at the Shopfloor blog, OSHA on October 19 announced new rules that will force employers to "make sweeping changes to their workplaces -- introduce new workplace practices and install new equipment -- to quiet workplaces even if employees are already protected from loud noises with effective earplugs and the like."

Immigration: A group of Republican senators were enough concerned about a leaked administration memo to write the president a letter last summer warning against a reported "deferred action or parole for a large illegal alien population." What the administration definitely has done is reinterpret rules so that federal immigration authorities won't detain or deport illegals who aren't guilty of any other crimes. And, as reported by Jessica Vaughan of the Center for Immigration Studies, immigrations and Customs Enforcement chief John Morton in August floated a draft policy memo that would prohibit both federal and local officials "from busting illegal aliens who are discovered as a result of traffic violations."

Net neutrality: After a federal court ruled that the Federal Communications Commission overreached in applying net neutrality principles to Comcast without proper statutory authority, the FCC announced yet another plan to reclassify broadband services to accomplish the same ends. Again, this is an end-run around Congress, which repeatedly has declined to pass net neutrality legislation.

Farm rules for rich trial lawyers: Former U.S. Rep. Bob Barr (R-GA) wrote an October 27 piece about how a former trial lawyer named J. Dudley Butler who specialized in suing the poultry industry now is an Obama appointee at the Agriculture Department, where he "is actively pushing to expand the scope of the decades-old Packers and Stockyards Act -- which will make it easier for trial lawyers (such as Mr. Butler) to successfully sue meat and poultry companies. This [is a] heavy-handed attempt to push through new federal regulations without seeking congressional approval.…"

Tax breaks for rich trial lawyers: The Treasury Department has acknowledged it is considering a rule reinterpretation, again after Congress repeatedly refused to act, that would provide a $1.2 billion (cumulative) tax break to plaintiffs' attorneys by allowing them to deduct client expenses up front rather than waiting for the outcome of their lawsuits.

New fuel-economy standards for heavy trucks: Never mind that trucking companies already are constantly trying, due to market forces, to improve their fuel economy. The EPA and the NHTSA jointly are proposing to force a 20 percent reduction in carbon emissions by the 2018 model year. Like the ethanol mandate, this is counterproductive: technology likely can't achieve that stupendously aggressive goal by 2018. "The only way to increase fuel efficiency as quickly as EPA's proposal requires will be to move less freight [per individual payload]," said Myron Ebell of CEI. Result: More big trucks on the road to carry the same amount of cargo, thus driving up prices and causing, at least in the short run, more emissions (because, say, 10 trucks each carrying x-minus-20 percent pounds emits more carbon than 9 trucks each carrying x pounds).

ON AND ON the regulatory monster grows. On education, for-profit colleges will likely be hamstrung, many put out of the business of serving lower-income students, by new rules completely denying the use of student loans for programs whose prior students have defaulted at high rates. (So current students and the schools that serve them will suffer because previous students weren't responsible. What sense does that make?) All private colleges will be subject to accreditation -- and therefore bullied -- through a government panel, rather than being answerable by the existing, independent accrediting agencies.

And health regulation moves from the ridiculous to the malign. For the former, consider that the Food and Drug Administration threatened General Mills with regulating Cheerios as a drug if the cereal box makes claims about health benefits. And, of course, for the malign, there is the ObamaCare law, which according to Donohue of the Chamber of Commerce, "creates 183 new agencies, commissions, panels, and other bodies." Yikes.

Obama's promised "hand-to-hand combat" will increasingly pit executive overreach versus constitutional legislative authority. Republican congressmen understand this, and the Pledge to America includes support for a bill that would block any new "major rule" promulgated by federal agencies until the rule is approved by both chambers of Congress and signed by the president. Of course, President Obama would kill that bill with one of the quickest vetoes imaginable.

Former House Appropriations Committee chairman Bob Livingston of Louisiana suggested another solution in a recent Wall Street Journal column. Just insert language in necessary spending bills that specifies that "none of the funds appropriated in this Act shall be used for… [whatever Congress wants to block]."

Obama can't regulate if he can't pay the regulators. But unless newly empowered congressional Republicans challenge him, he'll regulate all of us half to death. 

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About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.