Congress passed a few dozen bills last year that President Barack Obama signed into law.
Outside the normal legislative process, though, federal agency regulations number in the thousands annually.
Theoretically, all those rules undergo scrutiny under the Administrative Procedure Act whereby proposed rules are issued, and the public given ample time to comment before final rules issue. It happens to varying degrees.
The complex or expensive rules among them are supposed to undergo additional analysis stipulated in the Paperwork Reduction Act, the Regulatory Flexibility Act (to address small business impacts) and various Executive Orders requiring review at the Office of Management and Budget and, sometimes, cost-benefit analysis.
Cost-benefit analysis does not actually happen; only seven rules out of thousands had cost-benefit analysis in 2013, 14 the year before. Benefits of government get exaggerated when it does take the trouble to analyze impact.
The system has deteriorated. President Barack Obama’s 2014 State of the Union Address pledge to use his “pen” and “phone” to implement a “year of action” with or without Congress has become a taunt in recent weeks.
This “absolute imperious style” is threatening, coming from a national government characterized by lack of transparency and accountability (Environmental Protection Agency, foreign affairs, Internal Revenue Service, National Security Agency), Department of Justice over-reach, unilateral waiving of law like Obamacare, hostility toward affordable energy, and more.
As more of the economy falls to federal government rather than private sector management — retirement, medical, finance, insurance, energy, science funding and “manufacturing hubs,” critical infrastructure, control of lands — the pen and phone become easier to deploy off the books.
One would think Executive Orders are the means by which Obama goes around Congress to implement “Undocumented Regulation.”
E.O.’s deal with blocking accounts of Russian authorities blamed for the Ukrainian crisis and much else internal to presidential operations, but they’re by no means (yet) the fountain from which most big pen and phone decrees issue.
Plus, Obama’s not even close to being the record-holder when it comes to Executive Orders.
There are exceptions; the minimum wage for federal contractors is one such high-impact Executive Order with much reverberation, as is Non-Retaliation for Disclosure of Compensation Information.
Instead, it appears that what’s happening now is that documents called “Memoranda” are most regulatory in impact after laws and “normal” regulations.
Below appear a few examples, from 2014 only. Note that these are not laws passed by Congress; they are not regulations; they are not even Executive Orders; they are memos; yes, memos. Each one “hereby directs” someone in the federal heirarchy to do something that will lead to new controls and larger government without Congress having a say:
- Enhancing Workplace Flexibilities and Work-Life Programs 06/27/2014
- Helping Struggling Federal Student Loan Borrowers Manage Their Debt 06/12/2014
- Advancing Pay Equality Through Compensation Data Collection 04/11/2014
- Updating and Modernizing Overtime Regulations 03/18/2014
- Creating and Expanding Ladders of Opportunity for Boys and Young Men of Color 03/07/2014
- Job-Driven Training for Workers 2/05/2014
- Enhancing Safeguards To Prevent the Undue Denial of Federal Employment Opportunities to the Unemployed and Those Facing Financial Difficulty Through No Fault of Their Own 02/05/2014
- Retirement Savings Security 02/04/2014
- Establishing a White House Task Force To Protect Students From Sexual Assault 01/27/2014
- Establishing a Quadrennial Energy Review 01/14/2014
Some might say these differ only in degree rather than kind from other presidents; and granted, Obama’s no FDR with his 3,467 executive orders (among them the seizure of gold). Obama hasn’t tried to seize steel mills as Truman did.
Still, these few memos alone, without Congress acting: create a dubious new financial instrument, implement new positive rights regarding work hours and employment preferences, seem to nod toward California-style written consent before sex, blur energy and infrastructure in a manner aimed at extending government control and more.
The administration often emphasizes the alleged “net benefits” of its major rules. But the few it acknowledges are rivaled by the number of “mere” memoranda that appear to have significant impacts.
This handful just noted are recent presidential memos. One can’t readily see numerous agency memos and guidance documents buried among thousands of “Public Notices” (12,158 so far this year.)
John Graham and James W. Broughhel noted that IRS delays of Obamacare reporting requirements occurred though guidance document, blog post, bulletin and press release. Likewise, the Department of Homeland Security’s “Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” was a memo, web post and press conference.
House Speaker John Boehner is suing the Obama administration for exceeding executive authority and usurping congressional power.
I don’t know how much sense suit makes; it appears to be non-instrument as I understand the Constitution, and a distraction from the constitutionally appropriate instruments of Congress unfunding the “pen and phone” programs at issue, or from actual impeachment proceedings if appropriate.
It’s all a joke for Obama; As he ignores Congress, he’ll going to ignore the suit, and double-down with his signature class warfare rhetoric:
This [congressional] obstruction keeps the system rigged for those at the top and rigged against the middle class. And as long as they insist on doing it, I’ll keep taking actions on my own — like the actions I’ve already taken to attract new jobs, lift workers’ wages and help students pay off their loans. I’ll do my job.
As the administration mobilizes to exploit the “income inequality” meme to undermine the remnants of economic and personal liberty, is it anyone’s job to issue Anti-Executive Orders?