November 20, 2017
If you can't legislate -- regulate! That was the slogan of the Obama administration, which put enough stuffing in the federal rulebooks to fill every Thanksgiving turkey. By the time the former president left office, the government probably had to chop down entire forests to produce enough paper for the Federal Register -- which at a record 97,110 pages was hardly light reading for anyone, let alone the agencies trying to keep up with it!
And those guidelines aren't just oppressive -- they're pricey. Just putting those changes in effect cost hundreds of billions of dollars each year. (That's some expensive red tape.) But apart from the expense, conservatives' biggest beef with Obama's rule-making is that it took the legislating out of Congress's hands and put it in his -- and hundreds of unelected bureaucrats -- who all used these regulations to rewrite policies that the House and Senate already passed.
To put the situation in perspective, Congress passed 211 laws in 2016. To implement those laws, President Obama issued a whopping 3,852 regulations. That means the Obama administration had an 18-to-one advantage over lawmakers in directing the government's activity. And they weren't insignificant changes either. They defined everything from "gender" in health care to "reproductive services" in immigration. Obama's lawlessness got so out of hand that even his own party called him on the carpet. "It's become an unfortunate tradition of this administration," the executive director of the Center for Progressive Reform said of the president trying to accomplish his agenda without following the constitutional process. "Congressional rather than agency approval of regulations and regulatory costs should be the goal..."
Instead of waiting for activist judges to read something into the law that wasn't there, President Obama hung a "We Can't Wait" banner and used his own pen. Even the former director of the nonpartisan Congressional Budget Office weighed in about the last administration's governing by guidance. "There was a lot of overreach," Douglas Holtz-Eakin said, and it resulted in a "cumulative burden" of $890 billion in compliance costs. "There's no question the Obama administration went too far," he told reporters plainly.
Donald Trump agreed. When he ran for president, he promised to slash as many as 80 percent of all federal regulations. And over the summer, he got a good start. In July, Trump's agencies announced it "was pulling or suspending 860 regulations. "I cannot express to you enough how much things have changed when it comes to the regulatory burden," Office of Management and Budget head Mick Mulvaney explained.
Now, thanks to Attorney General Jeff Sessions, they're changing even more. On Friday afternoon, the Justice Department boss explained that the days of legislative free-wheeling are over at an agency that, under Obama, was one of the worst offenders. In a memo, Sessions banned the DOJ from the lawless practice of the last administration. "Effective immediately," he ordered, "Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments)... The Department of Justice is duty-bound to defend laws as they are written, regardless of whether or not the government likes the results. Our agencies must follow the law -- not make it."
For too long, Sessions explained, the DOJ has "[cut] off the public from the regulatory process by skipping the required public hearings and comment periods -- and it is simply not what these documents are for... Guidance documents should be used reasonably to explain existing law -- not to change it or rewrite the law." After all, he reminded everyone, "simply sending a letter" to "make new rules" is unconstitutional. Although he didn't mention it, Sessions was almost certainly referring to Obama's school bathroom mandate, which he forced on states with the help of former Attorney General Loretta Lynch. Instead of having a constructive policy debate, the former president defaulted to governing by executive action -- stomping over Congress in the process.
That subversion ends now, Sessions vows. As Charles Cooke explained in a great column for National Review, "In America, presidents enjoy the right to use their limited powers to get as much of what they want as is possible. But they enjoy nothing more. When his ambitions are tempered by the ambitions of the other elected figures within the structure... well, nothing happens. That, I'm afraid, is how separation of powers works."
Tony Perkins' Washington Update is written with the aid of FRC senior writers.