Litigation

More thoughts on Obama on regulation

By Ted Frank

Following up on yesterday's post, Walter Olson, Jacob T. Levy, John Carney, and, Jonathan Adler weigh in.

The executive order itself has no bite, because agencies performing cost-benefit analysis are permitted to "consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts." So an agency can rationalize a regulation that saps the economy of billions of dollars because of an argument that no price is too high to ensure "fairness" or "environmental aesthetics"; only the most obviously perverse regulations could flunk the test, and not even then if the regulatory administrator is equally perverse. Meanwhile, as the Heritage Foundation pointed out last year (via Olson), the government has been regulating at a record-setting pace.

Levy's observation is sound:

Note that Obama's op-ed named just one example of overregulation, already repealed: the classification of saccharine as hazardous waste by the EPA. And it foresees new or stiffer "safety rules for infant formula; procedures to stop preventable infections in hospitals; efforts to target chronic violators of workplace safety laws." The emphasis of the piece is hardly on any claim that in fact there is too much regulation in any area. The tone is generally one that says "we've been doing things basically right and now we will confirm that will a self-audit."

As a political move, however, Obama has had success: the Left is throwing a fit and the Chamber is praising Obama's "good first step," creating the illusion that his op-ed reflects a centrist change in policy. In that sense, it might be the best Sister Souljah moment ever: effective triangulation with a 1-degree angle.

Full post as published by Point of Law on January 19, 2011 (boomark / email).