House hearing warns of Biden’s admin’s ‘death by a thousand regulations’

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The House Oversight and Accountability Committee held a hearing last week titled “Death by a Thousand Regulations: The Biden Administration’s Campaign to Bury America in Red Tape.” During the hearing, majority members scrutinized President Joe Biden’s regulatory agenda and explained how his plan has enabled the administrative state’s growth.

Witnesses included Adam White of the George Mason University Antonin Scalia Law School, Casey Mulligan of the University of Chicago, Anthony Campau from Clark Hill Public Strategies, and Sally Katzen of the New York University School of Law.

The hearing focused on several key issues including regulatory costs and burdens, lost innovation and competition, and public health and safety. Republican members discussed the difference between being anti-regulation and anti-overregulation and argued that regulation was not inherently unnecessary, wrong, or bad, and, instead asserted that government should merely not overstep.

Ultimately, the hearing showed that there is a lively debate between Democrats and Republicans on what constitutes sensible regulation. The facts show that the Biden administration is overstepping on regulation on several fronts.

Biden’s “whole-of-government” initiatives interfere with the central mission of federal regulatory entities.

During the hearing, Chairman James Comer (R-KY) alluded to Biden’s “whole-of-government” approach to regulation, which he described as Biden “using his presidency as a platform to tie down America in overregulation.” Simply put, Biden’s whole-of-government agenda directs all federal agencies (even those without a statutory mandate, expertise, or interest) to advance his radical climate and equity agenda. Examples of this regulatory activism include the Securities and Exchange Commission’s (SEC) climate disclosure rule and the Department of Defense’s (DOD) equity contracting and procurement guidelines.

As CEI Fred L. Smith Fellow in Regulatory Studies Clyde Wayne Crews has said, the Biden administration’s “energized federalization is removing as an option the ability of citizens to escape federal programs or avoid being required to fund them.”

Further, whole-of-government forces agencies to move away from their central regulatory mission and instead focus on issues beyond their subject matter. With limited staff and resources, this seems foolish and ripe for disaster. Shouldn’t the SEC and DOD stay in their lanes and focus on financial markets and defense? What might happen if they stray too far from course? We saw the negative result of institutional drift with the Centers for Disease Control and Prevention bungling of COVID partly because the agency was too focused on lifestyle issues like vaping instead of its core mission in controlling infectious diseases.

Biden’s assault on regulatory guidance transparency obscures the breadth of the regulatory intervention.

Also discussed was Biden’s efforts to undo certain Trump-era regulatory reforms, namely Executive Order 13992. As CEI’s Wayne Crews describes, Trump’s order “required that executive agencies create ‘a single, searchable, indexed database that contains or links all guidance documents in effect.’” On his first day in office, Biden repealed the order and issued his own EOs to begin implementing his ambitious regulatory agenda.

Shortly after Biden’s repeal, Crews wrote the “order was the most significant…[as] it subjected the various memoranda, notices, circulars bulletins and other regulatory dark matter to some semblance of disclosure.” Under the order, “executive agencies were required to scrub outstanding guidance documents and establish ‘portals’ for the public to locate all the retained ones, and to post all new ones there,” and by the time Biden took office “agencies had accumulated over 70,000 documents.”

Biden gave little to no justification as to why the portal was repealed. To this day, many wonder why this guidance portal – which enhanced government transparency and accountability – was eliminated. With confusion as to why the portal was repealed and little explanation given, at face value it is clear that the move was a step in the wrong direction.

Biden’s Circular A-4 guidance rewrite would weaken regulatory checks and balances.

While it did not garner attention during the hearing, the Office of Management and Budget (OMB) is currently rewriting the Circular A-4 guidance. As detailed here, “A-4 is little-known but crucial oversight measure for new regulations [as] it gives important guidance to federal agencies on cost-benefit analysis.”

As CEI’s Crews wrote in Forbes,  the rewrite draft “underscore[s] irreconcilable differences (many longstanding) in what classical liberals and Progressives (who now comprise the bulk of the Administrative State career apparatus and Biden appointments) might be willing to recognize as a regulatory cost or a benefit in the first place when it comes to the introduction of coercion into human affairs.”

If allowed to go forward, Biden’s rewrite would weaken what good comes from its cost-benefit analysis and to embolden his bureaucrats in pursuing “whole-of-government” rulemaking and enforcement.

Time to grab those REINS?

To address whole-of-government in the short term, Congress should conduct robust oversight of all executive agencies, as well as OMB and the Office of Information and Regulatory Affairs, to expose just how deep the initiative permeates the executive. Appropriations riders to outright defund these agencies or at least riders to prevent implementation of certain rules/programs would also help stop them from advancing Biden’s reckless environmental and social justice agenda.

As to regulatory guidance, Congress should pass Rep. James Comer’s (R-KY) Guidance Out Of Darkness (GOOD) Act to reestablish the portal and create a centralized website, run by OMB, to collect all agency guidance documents and other forms of dark matter in one place. More on the GOOD Act from CEI senior economist Ryan Young can be found here: Regulatory Reform Bill in the 118th Congress – The GOOD Act.

Regarding the proposed OMB Circular A-4 rewrite, House Oversight Chairman Comer joined Oversight Subcommittee on Economic Growth, Energy Policy, and Regulatory Affairs Chair Pat Fallon (R-TX) this May in sending a letter to OMB Director Shalanda Young demanding answers on the move. In the letter, Comer and Fallon forecast that if finalized “OMB’s proposed revisions to Circular A-4…could ensure inflated and distorted calculations of benefits would routinely swamp calculations of projected regulatory costs. They also note that the proposed rewrite “dramatically threaten[s] to alter federal regulatory development and drive Americans’ regulatory burdens beyond already record-breaking levels.” Later in May, Sen. Eric Schmitt (R-MO) led a coalition of eight senators in sending a similar letter to OMB.

Several CEI scholars recently wrote comments to OMB on the A-4 rewrite. Here are comments from: Wayne Crews, Marlo Lewis, Daren Bakst, and James Broughel.

As Crews writes in his comments, “proposed changes to the conduct of Administrative State like those embodied in the Circular A-4 rewrite accentuate a conflict of visions over the size and scope of government and its role in society; over separation of powers; over executive over-reach; and over the fundamental relation of individual to the state” and should therefore be rejected.

Paired with all this, to truly reform the administrative state and counter some of Biden’s misguided actions on regulation, the House last week passed the Regulations from the Executive in Need of Scrutiny (REINS) Act and the Separation of Powers Restoration Act (SOPRA). Under REINS, all major federal regulations would require approval from Congress before being implemented. Meanwhile, SOPRA would overturn Chevron’s deference and make it so that courts have to interpret law, not the agencies. Both measures would do much to restrain regulators.

With America’s regulatory state standing as what would be the world’s 8th largest economy, administrative overreach concerns are on the rise as evidenced by this hearing. Rep. Kelly Armstrong (R-SD) said during his remarks that “all regulation is burdensome,” which should force Congress to “figure out if the regulation is necessary.”