August 19, 2013

Regulation nation: Obama expands the regulatory state

From: RegWatch/The Hill’s Regulation Blog

By Ben Goad and Julian Hattem

President Obama has overseen a dramatic expansion of the regulatory state that will outlast his time in the White House.

The reach of the executive branch has advanced steadily on his watch, further solidifying the power of bureaucrats who churn out regulations that touch nearly every aspect of American life and business.

Experts debate whether federal rulemaking has accelerated under Obama, but few dispute that Washington — for better or worse — is reaching deeper than ever before into the workings of society.

“It would be difficult for anyone to pretend that this isn’t a high water mark in terms of regulation,” said Douglas Holtz-Eakin, a former director of the nonpartisan Congressional Budget Office who now heads the American Action Forum.

Obama famously signaled his intent to use the machinery of government to further his policy goals after the 2010 elections, declaring: “Where Congress won’t act, I will.”

Since then, the administration has pressed ahead unilaterally on several fronts, including immigration, gun control, cyber security and sentencing guidelines for drug offenses.

Meanwhile, new federal rules are accumulating faster than outdated ones are removed, resulting in a steady increase in the number of federal mandates.

Data collected by researchers at George Mason University’s Mercatus Center shows that the Code of Federal Regulations, where all rules and regulations are detailed, has ballooned from 71,224 pages in 1975 to 174,545 pages last year.

“All incentives are to regulate more,” said Susan Dudley, the director of George Washington University’s Regulatory Studies Center.   The fight over executive power is increasingly pitting the three branches of government against each other, with Congress and the judiciary struggling to assert power over officials with broad discretion to issue rules.

While Republican lawmakers have scored victories in the messaging battle over regulations, they say proponents of a more activist government are winning the war.

“We sit back and watch this erosion and watch, really, an executive branch that has, I think, arrogant powers of overseeing things,” Rep. Mike Kelly (R-Pa.) told The Hill.

Taken separately, the public tends to support individual regulations.   A Gallup poll earlier this year found that 82 percent of Americans either believe the government is doing the right amount or needs to do more to protect the environment, while two-thirds say they would support stricter standards for food sold in public schools.

But critics, including industry groups and congressional Republicans, charge that the cumulative affect of the mounting red tape is crushing businesses.

“All the kinds of things we say we want: an expanding economy, more opportunity, more jobs — all of them are stifled by the regulatory oppression that’s occurred,” said Rep. Tom Price (R-Ga.).

Obama has responded to business’s concerns with a regulatory “look-back” aimed at scrapping old rules on the books. Howard Shelanski, the administration’s regulatory chief, told Congress last month that the effort had turned up hundreds of regulatory reform proposals, just a few of which could save up to $10 billion.   But the process of getting rid of regulations is easier said than done, experts say.

“Once a regulation is in place there are some groups that benefit from it, and they will fight very hard not to have those benefits taken away,” Dudley said.
Supporters of stronger regulation reject the criticisms of Obama’s tenure. What business groups term “burdensome” rulemaking, they say, is often critical work that protects people from tainted food, unscrupulous bankers, dirty air and countless other dangers.

“I think that’s a function of the fact that there are more threats to the public health and safety emerging on a regular basis, being identified on a regular basis,” said Amit Narang, a regulatory policy advocate at Public Citizen.   To be sure, the explosive growth in federal rulemaking did not begin with the Obama White House. The 13,000 rules finalized during the president’s first term, according to the nonpartisan Congressional Research Service (CRS), were slightly fewer than those published during President George W. Bush’s first term.

Yet the quantity of federal regulations is increasing by some measures at a quickening pace.

More “major rules” — those with an annual economic impact exceeding $100 million — were enacted in 2010 than in any year dating back to at least 1997, according to CRS.
And over Obama’s first three years in office, the Code of Federal Regulations increased by 7.4 percent, according to data compiled by the U.S. Chamber of Commerce. In comparison, the regulatory code grew by 4.4 percent during former President Bush’s first term.

None of these metrics are ideal measures of the growth of the regulatory state, but the available research suggests an “incredibly intense period of regulation” in the Obama years, Holtz-Eakin said.

Much of the activity can be attributed to the two sweeping pieces of legislation: ObamaCare and the Dodd-Frank financial reform law.

Both called for hundreds of regulatory actions on banking, insurance charges, business disclosures and other issues. Many of the rules are still under construction, their final language the subject of heated debate and fierce lobbying.

But Obama has also embraced the power of his office and administration to enact major policy shifts.

Nowhere is that more evident that at the Environmental Protection Agency (EPA), where officials are using authority granted by the Clean Air Act to draft a host of rules that are designed to combat climate change.

Industry groups have assailed the climate push as an assault on jobs, but supporters say it’s an example of agencies executing the laws that Congress has passed.

“The agency [regulation critics] love to hate the most — EPA — is responding to unequivocal statutory deadlines,” said Rena Steinzor, president of the Center for Progressive Reform. “If they don’t like these rules, they can set about amending the Clean Air Act.”

Despite Republican efforts, many observers expect the Obama administration to become more aggressive on the regulatory front.

In their second terms — and especially with a Congress that has passed as few laws as the current one — presidents tend to take matters into their own hands.

Long-sought rules to limit construction workers’ exposure to dangerous silica dust, require rearview cameras on cars and give overtime and minimum wage rights to in-home care workers have each been stalled for over a year, but could soon see the light of day.

Meanwhile, the Energy Department and EPA have instituted new standards on everything from tailpipe emissions to the energy efficiency of microwaves, and the Labor Department has long been working on rules to improve workplace safety, reduce discrimination and regulate pensions.

Supporters of aggressive federal rulemaking have high hopes that Obama will act boldly in the remainder of his term.

“I think you have cases where Congress has not been able to address threats to the public,” said Katie Greenhaw, a regulatory policy analyst at the Center for Effective Government. “So if there is existing authority, agencies have obligations to use that authority to protect the public.”

Reg Watch EDITORS’ NOTE: This is the first in a series of stories that will look at the growth of the regulatory state and its impact on the country.

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