President Obama’s Hidden Tax

Regulations are often called a hidden tax; but in President Obama’s case, it’s literally true.

Despite the written commitment to transparency and two executive orders since January 2011 instructing federal agencies to review and roll back rules, it’s hard to tell what federal regulatory agencies are doing in the aggregate and relative to one another.

That’s because the Spring edition of the Unified Agenda of Federal Regulatory and Deregulatory Actions, published since forever (or at least 1981), never appeared.

Now it’s November and almost time for the Fall Agenda and its supplemental Regulatory Plan. 

So the Agenda is two editions behind. Not only that, the Administration’s final 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates never appeared.

I asked in early September, and the General Service Administration’s Regulatory Information Service Center told me, “Regrettably, as of now we don’t have a date as to when the Spring Unified Agenda will publish.

You’re better off waiting for gas in New Jersey, where it’s still illegal to pump your own.

Regulators make most law now; 3,807 rules issued in 2011 compared to the 81 bills passed by Congress that year.

But the year-old Fall 2011 Agenda and earlier bi-annual iterations still provide insight. The Agendas show President Obama’s administration completed 230 “economically significant” rules in his first three years, while Bush completed 151. (Economically significant rules generally are rules with economic impacts of $100 million annually; and yes, some of them lessen burdens.)

As for uncompleted economically significant rules in proposed and final rulemaking stages (consider these a “work in process” proxy), Bush had 241 in play over his first three years, Obama 401. Completion status of the most recent of these isn’t obvious because we have no Unified Agenda to follow up on them. You’d have to comb through the Federal Register.

For the broader less-differentiated “significant” category of rules (economically significant rules plus rules considered officially significant for various reasons noted in E.O. 12866), we can skip the Agenda and look at the Federal Register database maintained by the National Archives. It’s current to the present, so we can get some idea about 2012.

Obama has issued 24 percent more significant final rules in his first four years than President Bush did. Note of course that 2012 isn’t even finished yet, and the administration is holding back costly rules:

Year in Office          Bush           Obama

1st                                295              371

2nd                              284              419

3rd                               336              444

4th                                321              306    (as of November 1)

TOTAL                      1236            1540



Lawmakers concerned about the lack of transparency are being ignored.

House Majority Leader Eric Cantor (R-VA) issued an “Imperial Presidency” report noting the absence of the Agenda (among many other grievances). Several congressmen from the Committee on Oversight and Government Reform sent an exasperated October 25 letter (their second appeal) to the Office and Management and Budget demanding a staff update this week.

A recent Washington Post poll showed regulation to be a mounting issue, but the tenor of the administration is that it’s not regulating all that much, that there’s no excess of regulations. Regulations create jobs, don’cha know.

The Federal Register added more pages – about 81,000 per year – over the last two years than at any point in history. As of November 1, the Register stands at 66,148 pages.

We need a transparency “report card” that makes regulation as salient as on-budget spending, and congressional accountability for what unelected agencies do. That’s basic democracy.

Alas, even balancing the budget won’t fix the economy, since today’s regulatory costberg hovers around $1.806 trillion annually, or half the level of federal spending itself.

It’s incredible to imagine the “hidden tax” of regulation is, in magnitude, equivalent to the entire federal spending budget of the late 1990s.