April 25, 2016
In the recent paper “Why Congress Must End Regulation by Guidance Document,” I described the rise of federal agency regulatory dark matter and proposed solutions to deal with it.
In this brief article I survey a few prominent examples of agencies regulating with “guidance” rather than the normal notice-and-comment regulatory process, and provide links to them.
As it happens, several congressional task forces are engaging overlapping issues of the expansion of executive branch power, restoration of...
Federal Agency "Guidance Document" Disclosure Gaps Show Congress Is in the Dark on Regulatory OverreachApril 18, 2016
In “A Quick and Dirty Inventory of Federal Agencies' Significant Guidance Documents,” I provided, well, a quick and dirty table depicting “significant” (usually, not always, $100 million annually) guidance documents in effect across some agencies that report per the mild directive of a non-binding 2007 Office of Management and Budget’s Good Guidance Practices GGP Bulletin.”
Guidance is not supposed to formally regulate the public the way each year’s 3,000-plus rules and regulations do, but if you don’t do what they say, well, you take your chances on that application or permit....
April 14, 2016
Much is written by many on federal agency regulations’ expansion and costs. Beyond those, guidance documents, memoranda, notices, and other regulatory dark matter proclamations are getting attention. Such edicts are not supposed to be legally binding on the public, wink-wink.
When a federal regulation is considered “significant,” that generally but not always means a cost of $100 million annually.
Guidance sometimes gets characterized the same way, but even less formally than what happens with rulemaking. With respect to “...
April 12, 2016
Annually, despite ups and downs, the number of federal rules and regulations tops 3,400.
While the overall rule counts in the Federal Register and the Unified Agenda of Federal Regulations dipped in the past couple years, President Barack Obama’s “pen and phone” promises to go around Congress clearly manifest themselves in other ways.
For example, some rules are bigger than others. The Obama administration’s output of higher impact rules is markedly higher than that of his predecessor, George W. Bush.
The more costly subsets of rules come in two flavors, known as “economically significant,” (generally affecting the economy by $100 million or more annually), and “major,” a...
March 28, 2016
Historian Staughton Lynd argued that the contemporaneously drafted Constitution and Northwest Ordinance of 1787 were themselves components of a larger implicit package that harmonized the conflicting interests of the several states, in which one document officially recognized and sanctioned slavery while the other expressly prohibited it (“The Compromise of 1787,” Political Science Quarterly, Vol. LXXXI, No. 2, June 1966, p. 225). Slavery was recognized in the Constitution’s 3/5ths clause, but was prohibited in the Northwest Territory by the Ordinance, and supposedly neither could have stood alone, in the context of the time.
Economists, like historians, may similarly be interested in questions of expanding territory and voting franchises. Per Ronald Coase (“The Problem of Social Cost,” Journal of Law and Economics. October 1960, pp. 1-44), if transaction...
March 14, 2016
The 2015 edition of White House Office of Management and Budget’s (OMB) annual Draft Report to Congress on the Benefits and Costs of Federal Regulations was latest we’ve seen from the “most transparent administration in history.”
Historically, the report has usually appeared in March, typically by April at the latest. There were September arrivals in Bush's last and Obama's first years. But the 2015 draft didn’t appear until October 16. The ...
March 1, 2016
The saga of executive branch overreach continues, and we got a twofer today.
The House Judiciary Task Force on Executive Overreach held a hearing this morning (March 1) on “The Original Understanding of the Role of Congress and How Far We’ve Drifted From It.”
A major point made at the hearing was that the Constitution’s Article I, Section 1‘s very first word, something likely not accidental, was “all.”
As in, “All legislative Powers herein granted shall be vested in a Congress of the United States.”
But the current president of the United States has not been shy about going around Congress. He has done so both to...
February 26, 2016
In the pen and phone era, one of the many examples of the descent into arbitrary lawmaking influencing an entire sector of the economy is the Federal Communications Commission’s order on net neutrality. Net neutrality is the FCC’s broad push to control both the infrastructure and content of tomorrow’s Internet. Today is the net neutrality order’s first anniversary, being “celebrated” by some senators with a just-introduced bill to repeal it called the Restoring Internet Freedom Act that, alas, is not the first attempt.
With net neutrality, the government would regulate the internet by using unashamedly authoritarian “advisory opinions”—not normal laws...
February 16, 2016
Allowing a $19 trillion federal debt when it was obvious that interest rates couldn’t remain zero forever is Exhibit A that legislatures rarely control spending. That overreach is compounded by the regulatory bureaucracies those same legislatures have endorsed over decades, either through design or apathy.
As lawmaking became untethered from the legislature and was delegated to unelected, unaccountable alleged experts at bureaucracies, economic, environmental, and social interventions escalated. There were 87 laws passed by Congress and signed by the president in 2015. However agencies, implementing laws passed earlier and by earlier Congresses, issued 3,408 rules and regulations—a multiple of 39 rules for every law.
One would think, given all the talk about...
January 4, 2016
The New Year brought news of yet more executive action by President Obama, most prominently this time on tweaking the Second Amendment and access to guns.
The President’s January 1 radio address outlined the plan. As the first order of business upon his return from Hawaii, the President and Attorney General Loretta Lynch will initiate a three-month review of options.
The emboldened president, who even maintains a taunting website devoted to the refrain “We Can’t Wait,” clearly loves unilateral executive actions. He has often invoked his “...