Here’s How Obama’s Pen and Phone Can Shrink The Federal Government Instead

This week is the deadline for filing public comments on the 2014 edition of a somewhat obscure annual publication called the Draft Report to Congress on the Benefits and Costs of Federal Regulation.

Prepared by the Office of Management and Budget (OMB), this report is the federal government’s only map of itself with respect to all benefits and costs of federal regulations — in an era when dozens of departments and agencies issue over 3,500 rules and regulations annually impacting the economy, environment, energy, health and safety, finance and more.

It’s a hefty report, and an important one. Yet too little of the regulatory apparatus gets reviewed, and too few agency mandates are questioned.

How do we know? Out of that flow of thousands, just seven rules in the report featured both benefit and cost analysis.

Independent agencies like those implementing the Dodd-Frank financial law and the Federal Communications Commission get a pass—they aren’t reviewed in OMB’s annual reports at all. And “regulatory dark matter” like agency guidance documents, memoranda, bulletins and notices escape scrutiny altogether.

Granted, reining in regulation is actually the responsibility of Congress, since it delegated too much power to bureaus in the first place. This represents a major constitutional separation of powers crisis which I’ll not fully address here.

Congress did try to backtrack some. But in the 113th Congress, House passage of regulatory reforms such as the ALERRT Act (Achieving Less Excess in Regulation and Requiring Transparency) and the REINS Act (Regulations from the Executive In Need of Scrutiny) were never met with Senate action. And president Barack Obama opposes both, regardless.

Now, the bi-partisan SCRUB Act (Searching for and Cutting Regulations that are Unnecessarily Burdensome) to establish a commission to clear outdated regulations is the sole cross-party measure.

Congress is clearly not going to act in the near term, and the president is solely interested in using his metaphorical pen and phone to expand Washington’s reach.

But it must be said that when it comes to executive power as such, the pen and phone can shrink government, not just grow it. Past presidents, particularly Ronald Reagan with Executive Order 12291 to scrutize, question and roll back excess regulation, have done so.

The federal government always says “yes” to regulations. To counter that, we need a Federal Office of No. I mean that figuratively and literally.

In that light, I filed comments to OMB calling for strengthening this annual executive branch review of federal regulations.

This OMB filing reviews the state of central OMB review of federal regulation and concludes that, were he inclined, the President and executive offices (likely when we have a new executive in place) could take numerous steps to better supervise federal regulation, and boost the economy, safety and fairness in the process.

Among the recommendations in The Federal Office of No: Enhancing the Executive Branch Role in Challenging Federal Regulation:

  • The president should freeze regulations with a moratorium
  • The president should strengthen and enforce existing executive orders on regulation
  • The president should schedule ongoing reviews of regulations
  • The president should reduce dollar thresholds that trigger preparation of so-called Regulatory Impact Analyses to ensure net benefits
  • The president should issue an executive order to allow for review of all agency guidance documents, memoranda and bulletins, not just rules
  • The president should regularly critique agency benefit claims
  • The president should compile an annual Regulatory Transparency Report Card
  • The president should separately report on Economic, Health & Safety, and Environmental regulations
  • The president should minimize indirect costs of regulations:
  • The president should recommend rules for revision or repeal
  • There’s much more detail in the report; moreover, every one of these steps would best be established as congressional legislation upgrading review and rolling back overreach.

But a president inclined to liberalize the economy and boost job creation could, as the president likes to boast, act without Congress. At least a little bit.