"[I]f Congress won't act soon to protect future generations, I will," President Obama warned in 2013. "I will direct my cabinet to come up with executive actions we can take, now and in the future." To underscore the seriousness of his unilateral action pledge, he concluded, "I've got a pen, and I've got a phone."
To date, Obama has used his pen-and-phone strategy to extend federal involvement in health care, financial services, infrastructure, scientific research, and manufacturing. Yet, that pen and phone can be used to shrink government, not just grow it.
This matters. Congress passed 72 laws in 2013, while agencies issued 3,659 rules and regulations-a 51 to one ratio. This disparity suggests two areas where a pen-and-phone strategy might do some good. First, increased government transparency about the nature of all these rules. Second, establishing something akin to a federal "Department of No" to reduce the bureaucracy's output relative to Congress.
Increased transparency is badly needed when disclosures about the regulatory process appear late or not at all.
The Unified Agenda of Federal Regulatory and Deregulatory Actions helps outsiders keep an eye on federal rules. Within its pages, agencies disclose all of their regulations at various stages of the rulemaking process. It is supposed to be published twice a year, in April and October. Recent editions have been issued late, and at inconvenient times. The fall 2012 Unified Agenda was released the Friday before Christmas, the spring 2013 edition on July 3, the fall 2013 report the day before Thanksgiving, and the spring 2014 edition over Memorial Day weekend. The spring 2012 report was never released at all.
Another alarming lapse is that final rules increasingly are not properly submitted to the Government Accountability Office and to Congress as is required under the Congressional Review Act. Congress needs these reports in the event it seeks a resolution of disapproval. Finally, there is the irregular schedule of the Report to Congress on Benefits and Costs of Federal Regulations, another essential transparency document that tallies up cost estimates for many new regulations.
So the first simple pen and phone reform is for the President to guarantee more timely release of such required disclosures. After all, these documents are published by the Executive branch, which the President runs.
The second pen-and-phone reform would address the lopsided ratio of agency hyperactivity to congressional inactivity. Before a regulatory agency's new regulation can take effect, it must first be published in the Federal Register and subjected to a public comment period.
However, agencies often dodge this process. They instead publish agency guidance documents, memoranda, notices and bulletins in the Federal Register – declarations that, while not technically rules, can have legal effect. Last year's delays in Obamacare's employer mandate was one example. Others include EPA Clean Water Act jurisdictional guidance on "Waters of the United States," and the Federal Trade Commission's "Guidance" on disclosure of paid search engine results.
To address this problem, the best use of pen-and-phone to restrain bureaucracy would be to figuratively (and later literally) erect a federal "Department of No" via executive order and within the Office of Management and Budget's existing regulatory review apparatus. This bureaucratic gadfly should prepare official dissents against agency regulations and the always-more-government conclusion that agencies reach in all health, safety, environmental, and economic concerns.
Healthy government requires seeking reasons not to impose yet another rule or law. There are always downsides to intervention that need underlining. Federal regulation isn't always the answer.
Congress delegated excessive power to the executive branch and created the regulate-first, ask-questions-later environment in which we find ourselves now, so the executive's power is limited in that regard. But there is still a lot that this or-more likely- future administrations can do to increase disclosure, rein in certain regulations, and offset big-government passions without exceeding the bounds of separation of powers.