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January 30, 2007
Bush Orders Political Oversight Of Agency Rulemaking

The Gray Lady gets hysterical this morning over the executive order signed by President Bush requiring oversight of agency rulemaking. Bush's order requires federal agencies to submit impact reports that justifies additional regulation not authorized by Congress as well as an annual report of the cumulative effect of their entire regulatory position, and it creates a White House appointee to conduct the oversight. One might consider this common sense, unless one has a bad case of Bush Derangement Syndrome:

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. ...

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.”

Hogwash. The order ends the tradition of unchecked authority by federal agencies to set up their own rules and apply them capriciously, outside of the control of either Congress or the executive branch. It makes agencies justify any new rules and brings that process into a little more sunlight and holds the bureaucracy accountable. And the only reason that Bush had to sign this order is that Congresses over the past several decades, Republican and Democratic, have done nothing to rein in the imperial bureaucrats who conduct empire-building.

When an agency wants to add more regulation without any Congressional authorization, they have the requirement to submit the proposals to the Office of Management and Budget for review. Most of them have used a workaround called "guidance documents", which get issued within the bureaucracies and have the force of policy. These documents never get public scrutiny, nor does OMB get a chance to review them before they go into effect. The regulated agencies usually see them, but no appeals process exists to stop them, since they exist outside any mechanisms for oversight.

That is a recipe for the mindless tyranny of petty bureaucrats and explains why regulation has gotten out of hand over the past few years. Even the Democrats used to acknowledge this; Al Gore led a task force for the purpose of undoing the overwhelming and mostly useless red tape within the federal bureaucracy. It went nowhere, and no systemic reforms were even contemplated. The Bush administration has obviously decided to pick up where the Clinton administration left off and actually do something to slow the tide of new regulation.

If Henry Waxman and the rest of Congress don't like this idea, then let them come up with some other way to end the unchecked power of "guidance documents" and the self-perpetuating empire building in the federal bureaucracy. Waxman served in the majority before 1994, and he's back there again. Until the Democrats and their constituent special interests either offer an alternative for controlling the expansion of power by federal agencies or justify the lack of oversight that allows it, then they have nothing at all to offer -- which is the reason why critics like the New York Times have settled for good, old-fashioned paranoia and scare tactics.

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Posted by Ed Morrissey at January 30, 2007 5:09 AM

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