Litigation

Obama triangulates on regulation

By Ted Frank

It was odd to me when conservatives targeted the nomination of Cass Sunstein to the Office of Information and Regulatory Affairs. Yes, the law professor (for whom I briefly served as a research assistant at the University of Chicago Law School) has scary views on freedom of speech and can be twee in the way only an academic can be on the issue of animal rights; I wouldn't want him in the judicial branch. But in terms of executive-branch regulatory policy, he has been one of the more sensible people on the left side of the aisle. The nomination was eventually confirmed, and then Sunstein disappeared from sight.

One can see Sunstein's hand in the WSJ op ed by Barack Obama announcing a new executive order (not yet on line) that will supposedly require that regulations not "place unreasonable burdens on business." (The line about saccharin is a giveaway.) One can cynically suggest that Obama is triangulating, moving to the center (or worse, trying to create the appearance of moving to the center without actually moving) to try to regain the business community's support lost in the first two years of his administration. But if the executive order language is good, and if regulatory agencies follow it, we can be pleased with the result no matter how sincere the motive.

Of course, the language may not be good. One concern is that Obama singles out the top-down and economically inefficient fuel-economy regulation as a good one. Another is that cost-benefit analysis can be meaningless if the regulators are permitted to put unrealistic estimates of "benefit" onto futile attempts to control global warming with today's technology—the EPA regulation on carbon will be a test of how sincere the administration is. And one wonders why the Obama administration revoked similar Bush administration executive orders in the very first month of his administration if the policy stated in the WSJ was this administration's long-term goal. Finally, the administration's request for reversal in the pending Mazda Motors v. Williamson Supreme Court case would undo over a decade of preemption law, raising business costs with no concomitant benefits.

Full post as published by Point of Law on January 18, 2011 (boomark / email).