Redstate

Somebody's Gotta Do It

By Pejman Yousefzadeh Posted in Featured Stories | Policy — Comments (2) / Email this page » / Leave a comment »

This story contains in the first few paragraphs signs and portents that are supposedly dark and ominous (read on):

President Bush has signed a directive that gives the White House much greater control over the rules and policy statements that the government develops to protect public health, safety, the environment, civil rights and privacy.

In an executive order published last week in the Federal Register, Mr. Bush said that each agency must have a regulatory policy office run by a political appointee, to supervise the development of rules and documents providing guidance to regulated industries. The White House will thus have a gatekeeper in each agency to analyze the costs and the benefits of new rules and to make sure the agencies carry out the president's priorities.

This strengthens the hand of the White House in shaping rules that have, in the past, often been generated by civil servants and scientific experts. It suggests that the administration still has ways to exert its power after the takeover of Congress by the Democrats.

I certainly don't mind scientific experts having a hand in rulemaking. I can deal with civil servants being engaged in the process as well--though Heaven knows that we could use a smaller bureaucracy. But it seems to me that since all of these fine folks are associated with the Executive Branch, they should be made to show their work--as any good student is forced to do--to a White House that has, until now, been quite lazy about exercising control over an increasingly unwieldy government bureaucratic structure.

The White House said the executive order was not meant to rein in any one agency. But business executives and consumer advocates said the administration was particularly concerned about rules and guidance issued by the Environmental Protection Agency and the Occupational Safety and Health Administration.

In an interview on Monday, Jeffrey A. Rosen, general counsel at the White House Office of Management and Budget, said, "This is a classic good-government measure that will make federal agencies more open and accountable."

Business groups welcomed the executive order, saying it had the potential to reduce what they saw as the burden of federal regulations. This burden is of great concern to many groups, including small businesses, that have given strong political and financial backing to Mr. Bush.

Consumer, labor and environmental groups denounced the executive order, saying it gave too much control to the White House and would hinder agencies' efforts to protect the public.

We expected that ideological breakdown, of course. But is there more to the story?

Why yes. Yes, there is:

Typically, agencies issue regulations under authority granted to them in laws enacted by Congress. In many cases, the statute does not say precisely what agencies should do, giving them considerable latitude in interpreting the law and developing regulations.

The directive issued by Mr. Bush says that, in deciding whether to issue regulations, federal agencies must identify "the specific market failure" or problem that justifies government intervention.

Besides placing political appointees in charge of rule making, Mr. Bush said agencies must give the White House an opportunity to review "any significant guidance documents" before they are issued.

The Office of Management and Budget already has an elaborate process for the review of proposed rules. But in recent years, many agencies have circumvented this process by issuing guidance documents, which explain how they will enforce federal laws and contractual requirements.

Not to draw too strict an analogy, but isn't the issuance of all of these "guidance documents" somewhat similar to the perceived danger posed by Presidential signing statements? Recall that Presidential signing statements have been criticized for circumventing the will of Congress after legislation is passed by imparting to the legislation a meaning that Congress may never have intended; indeed, a meaning that may go against the very language used by Congress. Doesn't a similar concern exist here? Aren't we just a wee bit vexed about the fact that the "elaborate process" in place for the review of proposed rules is being "circumvented" by these guidance documents? Is there not some worry that all may not be right and proper in the Kingdom of Bureaucratic Heaven?

It seems to me that these guidance documents are being abused to render the rule-making procedures established by the Office of Management and budget toothless and worthless. As such, it should come as little surprise that the Administration will want to regain control over what is increasingly an anarchic rule-making process. Regulations are being promulgated while no one is looking. That has to stop.

Representative Henry A. Waxman, Democrat of California and chairman of the Committee on Oversight and Government Reform, said: "The executive order allows the political staff at the White House to dictate decisions on health and safety issues, even if the government's own impartial experts disagree. This is a terrible way to govern, but great news for special interests."

Not to call into question the expertise of the truly great and noble, but just because you say that someone is an expert, it does not mean that they actually are experts. And who in the national political world is genuinely "impartial"? Come now, were we born yesterday?

Under the executive order, each federal agency must estimate "the combined aggregate costs and benefits of all its regulations" each year. Until now, agencies often tallied the costs and the benefits of major rules one by one, without measuring the cumulative effects.

In other words, they did not see the forest for the trees. This strikes me as . . . unwise.

Gary D. Bass, executive director of O.M.B. Watch, a liberal-leaning consumer group that monitors the Office of Management and Budget, criticized Mr. Bush's order, saying, "It will result in more delay and more White House control over the day-to-day work of federal agencies."

"By requiring agencies to show a `market failure,' " Dr. Bass said, "President Bush has created another hurdle for agencies to clear before they can issue rules protecting public health and safety."

"Another hurdle"! The first one is being circumvented with "guidance documents"! Give Dr. Bass credit--he is nothing if not exceedingly cheeky--but you can't possibly claim that a plethora of hurdles have plagued these agencies in the recent past.

Wesley P. Warren, program director at the Natural Resources Defense Council, who worked at the White House for seven years under President Bill Clinton, said, "The executive order is a backdoor attempt to prevent E.P.A. from being able to enforce environmental safeguards that keep cancer-causing chemicals and other pollutants out of the air and water."

Gosh, this sounds so very familiar.

Business groups have complained about the proliferation of guidance documents. David W. Beier, a senior vice president of Amgen, the biotechnology company, said Medicare officials had issued such documents "with little or no public input."

And now, we get to the nub of the problem some people have with the President's Executive Order: It does not allow federal agencies to make rules absent the input of a larger crowd of people. And that may mean that some of those rules will be found not to pass the laugh test, and thus will not be promulgated.

I've had a fair amount of reasons in the recent past to be disillusioned with the Bush Administration. But this move seems to be the right one. It appears clear that federal agencies are playing footsie with the rule-making process and their excesses need to be curbed. It is equally clear that we don't want a White House that is disengaged from the rule-making work done by the rest of the Executive Branch--especially when such rule-making is itself outside the bounds of established procedures. There is no wisdom whatsoever to allowing federal agencies to run amok in the promulgation of regulations unless one is part of a special interest that profits off of such unofficial shenanigans. The only real problem I see with the Executive Order issued by the President is that it took so long to issue.