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Government Just Revoked Our Right To Know What Regulations They Are About To Pass.

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Swimming quietly in the flood of executive orders that President Joe Biden unleashed in his first days in office is a stealthy little beast that will throw off major constraints for the regulatory state, while neutering existing requirements that the government actually tell you about its regulations; what they’ll mean for you; how they’ll be paid for; and how they’ll prevent the regulations from proliferating like a cancer of red tape. Of course, it’s all for your own good, because, well, COVID-19. And climate. And “racial justice.”

Biden’s Executive Order 13992 revokes “harmful policies and directives that threaten to frustrate the Federal Government’s ability to confront these problems and empowers agencies to use appropriate regulatory tools to achieve these goals.”

That all sounds lovely, except when you realize what it means. The list of prior executive orders that 13992 strikes down were meant to ensure that the regulatory state acts rationally with regard to analyzing and understanding the impacts its regulatory edicts will have on people. This includes ensuring that the benefits of regulations are greater than the costs they inflict on society, red tape doesn’t drown the planet, and that you actually get to be told about regulations before you find out that you’re in trouble for violating them.

Among the prior executive orders Biden revoked are Trump orders that called for:

  • Reducing Regulation and Controlling Regulatory Costs
  • Enforcing the Regulatory Reform Agenda
  • Improving the Utility of Federal Advisory Committees
  • Promoting the Rule of Law Through Improved Agency Guidance Documents
  • Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication
  • Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO

PAYGO, by the way, is “govspeak” for pay-as-you-go budgeting. You know, the thing you’re supposed to do with your household spending.

Space limitations prohibit detailing all of the prior executive orders killed in Biden’s festival of redactions, but here are key elements of a few of them.

Via executive order, the current president has eliminated a 2019 Trump Executive Order 13891 that would “take public input into account when appropriate in formulating guidance documents, and make guidance documents readily available to the public.” Right, government agencies are supposed to actually treat their regulations as if they are regulations, and tell people what the heck they’re obligated to do. Well, apparently, we can’t have that.

Another rescinded Trump order required that “Agencies shall act transparently and fairly with respect to all affected parties … when engaged in civil administrative enforcement or adjudication. No person should be subjected to a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct.” Wait, the government is supposed to tell you what it’s making illegal so that you can stop doing it and not run into trouble with the law? What a ridiculous idea. Yes, well, to quote Inspector Clousseau, “Not anymore.”

And of course, Biden’s order kills a Trump order which could be described as the “Pay your damn bills” order. That one required that “agencies consider the costs of their administrative actions, take steps to offset those costs, and curtail costly administrative actions.” Wow. So, regulators are actually supposed to consider the cost of their regulations, and figure out how they’re going to be paid for? Ghastly!

With one stroke of the presidential pen, Biden has thrown open the floodgates of government regulation under the expansive rationale of saving us from viruses and saving the Earth herself from the burdens we humans place on it by using energy and building stuff to let us survive on it. Oh, and ending unfairness.

This would be a very good time to buy stock in the ink and paper they use to print up the Federal Register where they tell us about all these great regulations! Oh, wait. They’ve decided that we don’t need to know.

Kenneth P. Green, who has a doctorate in environmental science and engineering, is senior fellow in environmental studies at the Pacific Research Institute.

Half The Economy Is Classified as Highly Regulated. To Unrig The Capitalist System, We Must Get Government Out Of The Way.

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Once again, some leading capitalists are worried about capitalism’s future, as indeed they should be. Their voices join those of critics from the left who think America’s version of capitalism is rigged. And rigged it is.

Recently, JPMorgan Chase CEO James Dimon and large hedge-fund manager Ray Dalio expressed concern about the health of American capitalism. First off, major political voices and freshly announced presidential candidates are highly critical of today’s capitalism, some to the point of endorsing socialism. They are getting a lot of attention and enthusiastic support.

Second and more tellingly, the two capitalists agree in part with capitalism’s critics. As they see it, plenty of people are smiling while closing loans on their second mansions, but a lot of ordinary people are not sharing in capitalism’s prodigious outpouring. More central to their concern, Dimon and Dalio see a hamstrung federal government incapable of doing anything about it.

Of course, economic systems evolve, and business historians have given more than a handful of monikers to America’s capitalist system. In the industrial heydays when automobiles were first produced in large numbers and steel mills pumped out miles of railroad track, we had “industrial capitalism.” When the ability to raise large amounts of capital for giant enterprises became critical, “financial capitalism” was born. And following the Great Depression and the regulatory remedies to counter it, the name changed to “government capitalism.”

Whatever affected capitalism the most got added to its name. In its current mode, we might accurately call our system “regulated capitalism,” and it is becoming more so.

Between 2000 through 2016, the number of regulatory restrictions written into the Code of Federal Regulation for all industries, as reported in the Mercatus Center at George Mason University’s RegData tally, has risen from a staggering level of 857,793 to 1,083,318. That’s a 26 percent increase.

Here’s another way to look at it: The share of American employment accounted for by economic sectors that might be termed “highly regulated”—including education and health, finance, government and utilities—rose from 31.5 percent in March 2000 to 49 percent in March 2019.

The system is rigged, you say? That’s where much of the rigging takes place. Half the U.S. economy is now heavily intertwined with Kudzu vine-like regulation that claims to remedy problems yet favors big, influential businesses and snuffs out creativity.

So yes, the critics are correct. Sadly, it seems, some call for the dog that bit them: More regulation.

How does regulation equal rigging? First and foremost, large corporations or businesses are better equipped to lobby government than us little guys. Successful encounters in congressional and regulatory offices are critically important for firms weighing whether or not to venture forth with new products and expanded plants.

And coincidentally, those powerful, favor-seeking businesses actually gain market power when a new regulatory fence is raised. In addition to their outsized influence in crafting regulation, they are better able to bear the costs than their mom-and-pop competitors.

As a result, larger firms and organizations and their CEOs are prospering relative to smaller ones. And not just firms like Amazon, Uber, Lyft, and General Motors. Included among the regulatory favor seekers are regional hospitals, universities, and the operators of major retail chains. As these larger entities prosper, smaller organizations without lawyers on standby scrap for survival.

So yes, those who say the system is rigged are dead right. But breathing new life into it will require more than just cutting back the regulatory vines—that necessary first step is already underway in the Trump administration. Reinvigorating American capitalism will require clearing a wider path for new growth and replacing the vines with the right kind of nothing.

Who knows? Maybe, just maybe, regulated capitalism will be replaced with free-market capitalism.

Bruce Yandle is a distinguished adjunct fellow with the Mercatus Center at George Mason University and dean emeritus of the Clemson University College of Business and Behavioral Science.

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