Freedom Line Blog

There are a lot of reasons to lament the rise of the administrative state. There’s the lack of accountability that comes from policy decisions being made by unelected bureaucrats. There are the cozy relationships that often form between regulators and those they regulate. There’s the avalanche of rules and regulations that make the law so vast as to be virtually unknowable. But one factor that’s become especially salient during the Obama years is the fact that administrative caprice undermines equality before the law. Case in point: the outbreak of waivers for favored clients of the Obama Administration.

While we’ve heard about this trend most often in regards to Obamacare, it’s also become a serious issue in education. As noted in Ezra Klein’s Wonkbook:

No Child Left Behind technically expired in 2007. But Congress didn’t manage to do anything about it. They just kept appropriating money for the zombie bill. And so the outdated provisions of this out-of-touch bill began strangling the education system.

NCLB says that fully 100 percent of school districts need to meet tough proficiency goals in reading and math in 2014 or they lose tons of money. It’s not going to happen. They’re not going to hit those targets and that’s been clear for years now. Everyone knows NCLB needs an overhaul. But, you know, Congress.

So the Obama administration has started waiving NCLB for states that propose sufficiently rigorous alternative plans. So far, 39 states and the District of Columbia have been let out of No Child Left Behind. On Wednesday, they were joined by eight individual school districts in California — Los Angeles, Long Beach, Santa Ana, Fresno, Oakland, Sacramento, San Francisco and Sanger. That’s the first time that’s ever happened.

“This is a pretty troubling development,” Chris Minnich, executive director of the Council of Chief State School Officers, told The Post. “The states have always traditionally been in control of accountability for most school districts. . . . The idea that the secretary of education is controlling the accountability system in eight districts in California is kind of mind-boggling.”

Of course, the Obama administration says, with some justification, that it would’ve been even more troubling to leave the million kids in these districts in the grips of a law that no longer makes any sense.

Luckily, we have a mechanism for amending or repealing laws that don’t make sense: it’s called Congress. If you can’t get a fix through, too bad. You don’t get to change the rules when you don’t like the outcome.

The Obama Administration shouldn’t be in a position to determine “sufficiently rigorous alternative plans” and favor some states over others. That’s a legislative judgment that needs to be worked out on Capitol Hill. And even that, frankly, is too much. Ideally, education should be managed exclusively at the state and local level. The bowels of the federal administrative state, however, are the last place from which control should be emanating.

From Fox News:

By law, each April and October, federal agencies are required to release an accounting of proposed regulations that will have an economically significant impact. That didn’t happen in 2012.

Instead, the Obama administration didn’t release its 2012 regulatory agenda until on the Friday before Christmas.

“The fact that this snuck in after the election, during the holiday season when people were otherwise occupied with their families, is not surprising,” said John Malcolm, senior legal fellow at the Heritage Foundation’s Center for Legal and Judicial Studies.

Since the Dec. 21 release, legal experts and analysts have been pouring through the tens of thousands of pages in order to determine their impact. According to an initial estimate by the American Action Forum, which notes that some entries are missing key fiscal data, the cost of implementing the agenda would top $123 billion. Completing the paperwork could require more than 13 million man-hours.

“It’s massive,” former Deputy Attorney General Tom Dupree said. “There’s no way any human being can sit down and read this whole thing from front to back.”

In a society that prizes both limited government and the rule of law, it’s reasonable to expect regulation to be simple, transparent, and cost-conscious. This new wave of dictates fails on all three counts. And what’s most singularly galling about the whole thing is that there is no one to hold directly accountable. No one who crafted any of these rules ever stood for office or received a single vote.

As ever, when it comes to the administrative state, the delegation of power is the abdication of liberty.

According to an article in the journal Regulation, there are two ways to regulate the flow of administrative agency rules.  The “downstream” approach tries to “rein in onerous regulations after they have been promulgated.”  The “upstream” method allows Congress “to restrict administrative agencies before giving them rulemaking authority during the legislative process.”  The idea is to get fewer and less costly regulations with five key reforms:

1)      Require agencies to review existing regulations for inefficiency at a set time after implementation (which sounds like something similar to Texas’ Sunset process)

2)      Require agencies to eliminate duplicative rules if a new regulation would supersede an older one

3)      Limit the total number of regulations during implementation of any new law (an attempt to make rule writers more cautious when spending their regulatory chips)

4)      Establish a regulatory “pay-as-you-go” that rescinds one old rule for every new rule implemented (the authors also argue for a proportionality requirement that ensures against an economy-killing rule replacing a forgotten restriction no longer necessary)

5)      Prohibit new regulations where costs exceed benefits

The key perk of the last proposal is requiring agencies to engage in a formal cost-benefit analysis during the implementation phase.  That helps put the agency on record – and the voting public on notice – of the true impact about to hit before it’s too late.

Check out the short (4 page), tightly-argued article here.

H/T: Cato Institute

Ever since the health care debate permanently damaged President Obama’s credibility with the American people, his administration has avoided major legislative confrontations. Instead, the White House has pursued many of its most controversial initiatives through the administrative process, hoping that Americans won’t notice major changes crafted through esoteric rule changes. Now’s your chance to prove the president wrong.

As the Daily Caller reports, the National Labor Relations Board is proposing a rule change that would dramatically shorten the period of time between when union organizers file a petition and when an actual unionization vote is held. The policy, intended to make it harder for management to counter union initiatives, would shorten the period from around six weeks down to 7 to 10 days. 

The Caller characterized one former board member as saying “the Board appears to be rushing to finalize its new policy before more Americans can flood the government with disagreeable comments.” But that looks to be a losing endeavor. The public comment period, which began on June 22, has already resulted in more than 17,000 comments, most of them negative.

There’s still time to stop the NLRB’s anti-business onslaught. The comment period remains open through Monday, August 22. If you’re interested in making your voice heard, you can comment here. The job you save could be your own.

An editorial in today’s Stockton Record crystallizes one of the reasons California is facing a $20 billion deficit: it has no master list of state-funded commissions and boards.

Per the Record:

…apparently no one really knows how many are out there although 300 is the number most often cited. A 1989 report by the Little Hoover Commission put it at 400. More recently, the California Performance Review evaluated 339 state boards and commissions. Others have put the number as high as 1,000.

How much they’re costing also is unknown, although getting rid of the 37 panels Brown has targeted would save about $10 million. Admittedly, that’s a drop in the proverbial state budget bucket, but do the math, and if 37 panels are costing us $10 million, what are all of them costing?

And lest anyone think this scandal isn’t bipartisan:

When he swept into office, Gov. Arnold Schwarzenegger vowed to dismantle the forest of boards and commissions that had grown like weeds in state government. That led to the creation of another panel to review government operations.

Among the panel’s findings: “These entities are so scattered and numerous across government that arriving at a firm number is nearly impossible. In our search, there was no single source we could turn to find out which commissions existed and why. In fact, state government has no master list of all boards and commissions and the thousands of political appointees that populate them.”

Incredible.

Indeed.