Obama Rushes to Build His Regulatory Legacy

President Obama knows that much of his legacy is written on sand, easily washed away by changing political tides. Following his party’s massive post-Obamacare losses, the president was faced with a choice: Work in a bipartisan fashion to find commonality and advance an agenda, or become a liberal figurehead by picking legislative fights and advancing an executive-based agenda. Obama opted for the latter.

Unfortunately, that is not what Obama promised to voters. In 2010, he seemed to understand that the regulatory state was out of balance, choking off economic growth with little gain in health and safety.

“[My executive order requires] a government-wide review of the rules already on the books to remove outdated regulations that stifle job creation and make our economy less competitive,” Obama wrote in an op-ed for the Wall Street Journal. “IT’s a review that will help bring order to regulations that have become a patchwork overlapping rules, the result of tinkering by administrations and legislators of both parties and the influence of special interests in Washington over decades.”

Obama’s willingness to drop his promise and instead ramp up the regulatory state infuriated conservatives, but won him plaudits from liberal activists. But it also meant that his legacy was made up of regulations, executive actions, and executive agreements, not democratically-passed laws. Former Senator Phil Gramm writing for the Wall Street Journal gives a glimpse into what this anti-democratic agenda looks like:

For example, when President Obama in 2010 couldn’t ram through his climate-change legislation in a Democratic Senate, he used decades-old regulatory authority to inflict the green agenda on power plants and the auto industry.

This is far from the only example: Labor Department rules on fiduciary standards; the National Labor Relations Board’s ruling that franchisees are joint employers; the Environmental Protection Agency’s power grab over water ways; the Federal Communications Commission’s attempt to regulate the Internet as a 1930s telephone monopoly. All are illustrations of how President Obama has used rule-making not to carry out congressional intent but to circumvent it.

It comes as little surprise then that business owners, particularly small business owners, are becoming increasingly sensitive to the regulatory burden they face. They army of lawyers needed to understand the rules, the non-productive employees needed to ensure compliance and report on the regulations, and the business changes needed in order to adjust to the whims of bureaucrats, create both direct and indirect costs, which can make it financially impossible to begin or grow a business.

If businesses and job creators thought it was bad now, they better brace themselves. Politico’s Timothy Noah reported in January:

Nearly 4,000 regulations are squirming their way through the federal bureaucracy in the last year of Barack Obama’s presidency — many costing industry more than $100 million — in a mad dash by the White House to push through government actions affecting everything from furnaces to gun sales to Guantánamo.

Much of this work will be carried out in the coming months by career bureaucrats working in the bowels of federal agencies, but the cumulative effect adds up to something larger: A final-year sprint by a president intent on using executive power to improve the lives of American workers and consumers — in many instances over loud objections from the businesses that will have to pay for it.

“The regulatory state has grown under this administration seemingly without regard to the costs, practicality, or event legality, of rules pushed through by federal agencies,” Chamber of Commerce President Thomas J. Donohue told Politico. “The president’s hurry-up approach of executive orders and rushed rule makings is no way to govern a representative democracy.”

Now, with his term in its twilight, President Obama is really stepping on the gas pedal, in part to avoid the reach of the Congressional Review Act.

A new Politico article finds that the Obama administration is “shoveling out regulations nearly one-third faster in its final year than during the previous three,” in an effort to meet the CRA deadline. The CRA law gives Congress 60 legislative days after a regulation is issued to block it by using an expedited procedure. Because of the way the legislative calendar is set, that means that late May is likely the magic deadline, whereby regulations would avoid a reset of the 60-day lock that would allow the next Congress and President to use CRA review.

Fortunately, by choosing to use executive means to build his legacy, he leaves open the possibility that the next president could work swiftly to undo them. The wages of impertinence is impermanence.