Regulatory window dressing versus real reform 

By now, most of us have sized up President Barack Obama’s executive order to reform government regulation as an empty gesture.

As he bragged in his State of the Union speech, Obama has commanded his legions of unelected bureaucrats to examine all their rules, sift them through a cost-benefit test, and then remove all “outdated regulations that stifle job creation and make our economy less competitive.”

At first, even Obama’s vociferous critic, the U.S. Chamber of Commerce, welcomed his “intention to restore balance to government regulations.” A thorough reading of the order, however, revealed that there was no such intention.

The weasel words in the fine print ordered all government appointees to load their cost-benefit tests with values impossible to quantify — “equity, human dignity, fairness, and distributive impacts.”

Such irreproachable notions are hard to test for cost-benefit purposes, but they will inevitably be tallied by regulators as “benefits” worth billions, a safety valve that will get them off the hook of actually eliminating regulations, with its attendant downsizing of agency staff, salaries and power.

But the regulated who pay for those lofty benefits carry them as costs — costs that busy job creators didn’t notice and that baffled bookkeepers didn’t know where to enter on their ledgers.

Agency heads aren’t about to admit that “distributive impacts” are costs. That’s murky language, but probably means “transfer payments” in Obama-speak.

This isn’t just about money and jobs. Nobody has mentioned that agencies apply criminal penalties for violating regulations, which have the force of law. Thousands of Americans find themselves behind bars for crimes defined not by Congress, but by the agencies that prosecute them. Former Justice Department attorney Roger Marzulla told Congress, “Four Supreme Court justices said that constitutes a threat to liberty and democracy — and is probably unconstitutional.”

Then there’s the fatal defect that the executive order didn’t mention: The president’s power “to make the agency’s regulatory program more effective or less burdensome” by repealing bad regulations is limited or in some cases nonexistent. If Congress mandated a specific regulation, Obama can’t unilaterally repeal it.

So, despite the executive order’s impressive title — “Improving Regulation and Regulatory Review” — Obama couldn’t deliver even if he wanted to, which is doubtful.

It’s doubtful because Obama’s flimsy executive order can’t hide the multitude of new rules — 191 of them, according to the Wall Street Journal — now being readied for the Code of Federal Regulations.

Phil Kerpen, vice president for policy at Americans for Prosperity, got it right when he said on Fox News, “Let’s give the United States’ economy a time-out from new regulations.”

Kerpen is a supporter of the REINS Act, which would require Congress to take an up-or-down vote on every new major rule before it could be enforced on the American people and businesses. A major rule is defined as one that will have an economic effect of at least $100 million.

Rep. Geoff Davis, R-Ky., introduced the “Regulations from the Executive in Need of Scrutiny Act” as H.R. 10, with 87 co-sponsors. It can’t undo the regulatory damage already done to America’s economy — whole industries decimated, timber, mining, oil and gas drilling — but it can stop Congress from its thoughtless, runaway delegation of legislative authority to the executive branch.

The innovative plan didn’t come from a Washington think tank or a university. It came from an ordinary citizen from Alexandria, Ky., Lloyd Rogers. He called Davis, and said, “I have an idea.”

It became the REINS Act, which was included in the official House Republican platform document, the Pledge to America. It’s likely to pass this year. The question is, will Obama sign it?

Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.

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