Opinion

Obama’s secret (and illegal) regulatory bomb

Photo of Phil Kerpen
Phil Kerpen
President, American Commitment

The fiscal cliff looms and, because it would be the largest tax hike in history, certainly deserves all the attention it’s getting. But a regulatory cliff also looms — an astonishingly growth-crushing regulatory agenda that could be even more devastating than the fiscal cliff. How devastating? Obama refuses to tell us. And that’s illegal.

Under the Regulatory Flexibility Act, the president is required by law to submit his regulatory agenda to Congress twice a year, in April and October. The report is required to include every economically significant regulation in the pipeline. This year, April came and went and the legally required report wasn’t filed.

Senator Jim Inhofe (R-Okla.) last week politely asked President Obama to follow the law: “I request you comply with the law and publish the federal government’s regulatory calendar this month. Businesses and communities need to understand the future regulatory landscape in order to properly plan and invest in the economy.”

The reply? None. October came and went with no response and no legally required regulatory agenda report. That’s because complying with the law would tell the American people how much economic pain the Obama administration has stored up for a potential second term.

We don’t know exactly how big the regulatory bomb is going to be because of Obama’s illegal secrecy, but an estimate from the National Federation of Independent Business of some of the known rules clocks in at over $515 billion in economic costs. That estimate doesn’t even include an expected ban on coal-fired power plants whose costs could run into the trillions.

That rule is slippery because it would purport to effectively ban new coal-fired plants, with a stated cost of zero because natural gas is presently so cheap that new coal capacity isn’t being built. But it would also create the predicate for litigation that would shut down existing coal plants, cementing as Obama’s legacy his promise to bankrupt coal and make electricity prices skyrocket.

There are also several onerous financial rules pending pursuant to Dodd-Frank. The Labor Department has been working on a rule that would significantly increase the cost of retirement planning. The Department of Transportation has a rule pending to require rear-view cameras in all cars and trucks that would cost billions, and another to require airplane-like “black boxes” that would potentially make available to the government every detail of Americans’ driving habits.

What else? Who knows? It could run well into the trillions. The law requires the president to tell us. But he’s breaking the law.

That shouldn’t surprise us considering the extra-legal governing style that defined Obama’s term. Cap-and-trade failed? Have the EPA do it. Net neutrality dead-on-arrival in Congress? Let the FCC invent the authority for itself. No card check? Get the NLRB to sue non-union employers. Obama’s interior secretary was actually held in contempt of court for imposing an illegal offshore drilling ban; Obama didn’t budge.

So now the Regulatory Flexibility Act joins the country’s immigration laws on the roster of laws Obama simply disregards — the flipside of all those failed bills he has regulators pretend passed.

In January of this year, President Obama declared the Senate to be in recess the day after it gaveled into session. Like a king dissolving parliament, he put them in recess to give himself a free hand to stack the NLRB with union cronies and to install Richard Cordray at the Consumer Financial Protection Bureau, a new agency with nearly unlimited power to regulate consumer financial transactions with almost no oversight from Congress other than the right of the Senate to approve the appointment. It gets its budget not from Congress but from the Federal Reserve.

What scared me most about Obama’s recess declaration was that he announced it to an adoring crowd. A crowd that believed — regardless of the law or the Constitution — the man could do no wrong. And that’s what makes this election so absolutely critical. If Obama can govern with thinly veiled contempt for the rule of law and get re-elected anyway, he may drop the pretense completely if he gets a second term.

Phil Kerpen is the president of American Commitment and the author of Democracy Denied.