Regulatory Opinion: Year in Review

“From Rhetoric to Action”

by Jonathan H. Adler, Case Western Reserve University (June 26)

Republican presidential nominee Mitt Romney has promised to restrain the cost and scope of federal regulation if elected president.  Early campaign ads pledge a President Romney that would take immediate steps to relieve regulatory burdens on the economy.  His campaign promises a “day one” executive order that would direct federal agencies “to immediately initiate the elimination of Obama-era regulations that unduly burden the economy or job creation” and to cap “annual increases in regulatory costs at zero dollars.”

“Nudging Smokers Away from Tobacco Risks”

by Alberto Alemanno, HEC Paris and Georgetown University (March 15)

At a time when policy makers seek to change individual behavior to solve a broad range of social problems, such as climate change, excessive drinking, obesity and crime, a promising new policy approach seems capable of escaping the typical reservations associated with regulatory action. The new approach, which stems from the increasingly ubiquitous findings of behavioral research, is generally captured under the evocative concept of ”nudge.” Inspired by “libertarian paternalism,” the nudge approach suggests that the goal of public policy should be to steer citizens towards making positive decisions as individuals and for society while preserving individual choice. This innovative approach to policymaking is progressively shaping tobacco control policies.

“Romney’s Regulatory Agenda – Right Turn?”

by Ronald A. Cass, Cass & Associates (June 25)

Presidential campaign documents seldom read like carefully crafted scholarly work. It is no surprise that the section on Regulatory Policy in Believe in America: Mitt Romney’s Plan for Jobs and Economic Growth emphasizes broad themes, impressionistic evidence, and solutions that are less than fully developed. The relevant question in evaluating such documents is not whether they offer precise and well-crafted specifics but whether they offer sensible direction dressed in a politically attractive package.

“Taking Regulation Seriously”

by Cary Coglianese, University of Pennsylvania (January 28)

I may be the only one, but I’ll own up to it.  I laughed at President Obama’s State of the Union pun about crying over spilled milk.  Bad jokes aside, regulating is a serious business, one we need to learn to do better.  Unintentionally, President Obama’s joke helps illustrate the need to understand how regulations actually work.

“An Incomplete Contraceptive Coverage Compromise”

by Cary Coglianese, University of Pennsylvania (February 13)

In Friday’s highly publicized announcement, President Obama may have helped contain the political firestorm over the new federal mandate that health plans cover contraceptives. But the embers are still hot.  And legally speaking, nothing has changed. On Friday, the Department of Health and Human Services (HHS) issued a final rule that looks just like what it announced on January 20 – the very announcement that set off the recent firestorm.

“Bureaucratic Rules: A Tale of Two Libraries”

by Christopher H. Foreman, Jr., University of Maryland (August 7)

I once undertook to assist my younger son Paul with his undergraduate senior thesis, an endeavor that led to a day spent in each of two federal libraries. I had anticipated two days of relative tedium. I had not anticipated receiving yet one more stark lesson in how superficially similar organizations can develop sharply contrasting operating styles deriving from fundamental (if, to the average person, rather subtle) differences in the nature of their respective organizational missions.

“The Need for a Judicial Check on Regulatory Compliance Orders”

by William Funk, Lewis & Clark (January 9)

Earlier this morning, the U.S. Supreme Court heard oral arguments in Sackett v. EPA. Commentators in the media have characterized this case, depending upon their orientation, either as one involving an overbearing government agency threatening a family for trying to build a house on slightly more than a half-acre of its property, or as a threat to the ability of the Environmental Protection Agency (EPA) to take necessary action to protect the environment. Unfortunately, for those of us who prefer truth to propaganda, neither of these descriptions accurately states what is before the Court.

“Rule of Law Prevails in Sackett v. EPA”

by William Funk (March 25)

This week, the Supreme Court decided a case that was anxiously awaited by property rights mavens on one side and environmentalists on the other. The case involved the Sacketts, owners of some property near Priest Lake in Idaho, upon which they wished to build a house. In preparation for construction, they contracted to have .6 acres of their land filled with rock and dirt. After learning of this plan and subsequent discussions with the Sacketts, the Environmental Protection Agency (EPA) concluded that the land was wetlands subject to protection under the Clean Water Act (CWA) and issued a Compliance Order to the Sacketts.

“Obama’s Reforms Give States a Shot at Coming Out Winners”

by Gillian E. Metzger, Columbia University (March 26)

There’s a common impression that key Obama administration regulatory reforms have created a power struggle between the federal government and the states. States challenging healthcare reform have portrayed that new legislation as a giant federal takeover and coercion of state governments. But that characterization misses what’s really going on.

“Pennsylvania’s SNAP Asset Test Will Backfire”

by Mark Mitchell, Staff (March 7)

The Pennsylvania Department of Public Welfare’s (DPW) final proposal to reinstate an asset test for recipients of the federal Supplemental Nutrition and Assistance Program (SNAP) is only likely to harm the people that the test was meant to protect — and rather than saving Pennsylvania money, it will probably cost more money over time than the current test.

“Court Misapplies First Amendment to Strike Down FDA Cigarette Warning Labels”

by Jonathan Mincer, Founding Editor-in-Chief of The Regulatory Review (March 3)

Under Supreme Court doctrine, regulators have more latitude to impose disclosure requirements on corporations than they do to suppress their speech.  In a bizarre opinion this week, Judge Richard Leon of the D.C. district court misapplied First Amendment law to strike down a regulation of the Food and Drug Administration (FDA) that would require graphic warning labels on cigarette packages and advertisements.

“Time to Discard the Precautionary Principle at the CPSC”

by Nancy A. Nord, United States Consumer Product Safety Commission (May 23)

Unfortunately, the precautionary principle is alive and well at the Consumer Product Safety Commission (CPSC). Traditionally disfavored by American regulators, the precautionary principle holds that activities or substances suspected of causing harm to the public—even when evidence of harm is lacking—should be limited or banned until safety can be demonstrated. This posture is easy for politicians or regulators to explain to the public, but needlessly stringent regulation can be costly and lead to unwelcome consequences. And the CPSC’s mission is to protect the public from unreasonable risks, not all risks.

“Judicially Enforced Notice-and-Comment Rulemaking Systematically Biases Results in Favor of Regulated Firms”

by Richard J. Pierce, Jr., George Washington University (January 24)

Many proponents of effective government regulation have lavished praise on the judicially enforced notice-and-comment rulemaking process that is required by section 553 of the Administrative Procedure Act and that dominates regulatory decision making by federal agencies.  In theory, the notice-and-comment process provides a judicially enforced means through which all individuals and groups that have an interest in the outcome of a m
ajor regulatory decision making process, including beneficiaries, have an effective means of influencing its outcome.  Recent empirical research exposes this widespread belief as completely fictional.

“The Stakes in the Fracking Debate”

by Richard J. Pierce, Jr., George Washington University (January 26)

Use of horizontal drilling and hydraulic fracturing to produce natural gas from shale formations – so-called fracking – has provoked debate among politicians all over the world. It has also raised scores of challenging legal issues that are being litigated in numerous agencies and courts.

“Valuing the Rear-view Camera Rule”

by Arden Rowell, University of Illinois (May 30)

In 2008, Congress passed the Cameron Gulbransen Kids Transportation Safety Act. The Act requires the National Highway Traffic Safety Administration (NHTSA) to “expand the required field of view to enable the driver of a motor vehicle to detect areas behind the motor vehicle to reduce death and injury resulting from backing incidents, particularly incidents involving small children and disabled persons.” The Secretary of Transportation has the authority to meet this standard through a variety of means, including by requiring additional mirrors, sensors, or cameras.

“Obamacare and Federalism’s Tug of War Within”

by Erin Ryan, Lewis & Clark Law School (June 21)

In just a matter of days, the Supreme Court will decide what some believe will be among the most important cases in American history.  In the “Obamacare” cases, the Court will consider whether the Affordable Care Act (ACA) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance.

“The Justices and the Individual Mandate”

by Ilya Somin, George Mason University School of Law (March 30)

This week’s oral arguments before the Supreme Court shed some  new light on how the justices are likely to vote on the constitutionality of the individual health insurance mandate contained in the Affordable Care Act (ACA). Overall, the arguments went well for the anti-mandate plaintiffs. But the ultimate result is still difficult to predict. Four justices seem likely to vote to strike down the mandate, while four others are likely to vote to uphold it. As the Court’s key swing voter, Justice Anthony Kennedy could potentially go either way.