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Trump’s Trade War eterioration of checks and balances To worsen this weakening of checks and
Hurts Americans via regulatory overreach and over- balances, the APA enables administrative
delegation by Congress to agencies are agencies to influence policy and exert
central to most modern critiques of the preferences and biases, without writing
administrative state. Less appreciated, notice-and-comment regulations at all.
though, is the extent to which administrative The catalog of allegedly sub-
agencies can influence policy without going regulatory decrees goes on, encompassing
7 through the established rulemaking process.
Agencies have issued reams of guidance
memoranda, notices, circulars, FAQs,
administrator’s interpretations, bulletins, and
BY ANGELA LOGOMASINI documents consisting of general statements other forms of “regulatory dark matter”—
Unfounded Accusations of policy and interpretive rules—as well as including even press releases and blog posts.
Regarding Bees and Glyphosate memoranda, interpretive bulletins, and other Such guidance can subvert the APA as a
issuances—over the years that can carry safeguard against overregulation. Worse,
regulatory weight. such widespread use of guidance displays
Congress should both streamline such disregard for constitutional norms.
decrees and reaffirm that such policy making Such agency edicts are not supposed
via guidance is not binding. However, given to be legally binding on the public, or even
that congressional action is both slow and on the agencies themselves. Yet, agencies
10 unlikely in the short term, the president should
issue a new executive order to highlight
sometimes invoke or refer to guidance in
correspondence or interaction with regulated
BY TREY KOVACS and strengthen the review and control entities. While businesses frequently request
A Labor Reform both Democrats of sub-regulatory guidance documents. clarifying guidance, even the Administrative
and Republicans Can Get Behind Over-delegation by Congress to agencies, Conference of the United States (ACUS)
overreach by those agencies, and court acknowledges that “members of the public
deference to that state of affairs have led to may feel bound by what they perceive as
ALSO IN THIS ISSUE this proliferation of regulation. coercive guidance” and “sometimes find they
The 1946 Administrative Procedure Act have no practical escape from the terms of a
(APA) established the public consultation policy statement.”
Congress Already Ruined Sports Betting
Once; Don’t Let Them Do it Again. . . . . . . . . . 5 rulemaking process, which consists of In addition, a significant amount of both
More Realistic Fuel Economy Rule Would advance notification of rulemaking to regulations and guidance is invalid, not
Cut Traffic Fatalities and Lower Gas Prices. . . 6 give the public the opportunity to provide having been submitted to Congress or to
A Decade after the Financial Crisis, the comment on a published proposed rule the Comptroller General of the Government
Government Fuels another Housing Bubble.8 before it is finalized in the Federal Register. Accountability Office as required by the
Supreme Court Hears Challenge to Unfair Despite its purported safeguards, the APA’s 1996 Congressional Review Act—which
Class Action Settlement . . . . . . . . . . . . . . . . . . 9 rulemaking process allows for wiggle gives Congress 60 legislative days to review
The Government Should Allow T-Mobile room via its “good cause” exemption, by a final major rule and pass “resolutions of
and Sprint to Merge. . . . . . . . . . . . . . . . . . . . 11 which an agency may deem notice and disapproval” to repeal certain agency rules.
The Good, the Bad, and the Ugly. . . . . . . . . 14
Media Mentions. . . . . . . . . . . . . . . . . . . . . . . 15 (continued on page 3)
End Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A Winter Escape from the Regulatory Blahs
by Kent Lassman
The recently announced Safe The latest report of the United Nations On October 21, the European
Affordable Fuel Efficient (SAFE) Intergovernmental Panel on Climate Parliament endorsed a proposal to
Vehicles proposal—issued last August Change (IPCC), published on October ban a wide array of popular plastic
by the Department of Transportation 8, promoted headlines regarding the products, such as straws, plates, and
and the Environmental Protection supposed urgency for drastic climate cutlery. EU officials claim the proposal,
Agency—would partially roll back policy action, thanks to its alarmist which still needs to be approved in
the stringent schedule for corporate tone. “The IPCC’s report is the latest negotiations with member states, is
average fuel economy standards set in a series of dire warnings of tipping needed to fight ocean pollution. In
by the Obama administration. Stringent points and last chances dating back to reality, it fails at its stated objective,
CAFE standards lead automakers to the 1980s. The good news is that the while burdening consumers. “The
produce smaller, lighter cars. They also rate of global warming since 1980 is proposed EU ban is simply an attack
make newer cars more expensive. Both much lower than that predicted by the on consumer freedom that won’t help
of these effects undercut traffic safety. computer models used by the IPCC,” the environment,” noted CEI Senior
The proposed rollback, by reducing said Myron Ebell, Director of CEI’s Fellow Angela Logomasini.” While
these effects, would save more than Center for Energy and Environment. bans on plastic consumer items like
12,000 lives over the next several “Unless the rate of warming increases bags, cups, straws, and whatever
decades, according to the agencies’ dramatically, the drastic and immediate else may be great material for
estimates. However, as CEI argues reductions in greenhouse gas emissions grandstanding by politicians, they
in comments filed with the agencies, the IPCC claims are necessary to only divert attention from developing
if this partial rollback will save that avoid catastrophe will not be needed. real solutions that actually tackle
many lives, then a bigger rollback That’s good because the IPCC’s policy the problem of plastic waste in our
would save even more. Using the recommendations would be colossally oceans. They also ignore the benefits
agencies’ own models, CEI estimates expensive—taxes on carbon dioxide of products in ensuring sanitary food
that lowering the standards even further emissions equivalent to adding $29 to service, convenience, and energy
would save an additional 4,000 lives. a gallon of gasoline by 2030.” savings.”
...END NOTES
Do You Have a Permit for that Jack O’Lantern? Do You Have a Permit for that Ramp?
Want to bring some Halloween cheer to your neighborhood? The Texas Ramp Project is a nonprofit that has built tens
You may need to check with local officials first—and killjoy of thousands of ramps across the Lone Star State, free of
neighbors. Canton, Ohio resident Michael Fillon was recently charge, to help people in wheelchairs to go in and out of
forced to shut down the haunted house he had set up outside their homes. “It felt freeing to be able to go down the ramp
his house after getting a call from the local fire marshal. “I and out of the house,” said Nancy Miner, of Duncanville,
didn’t realize I needed to have a license for a home haunt,” Texas. “Otherwise, I’m kind of a prisoner in there.” This is
Fillion said. Most of Fillon’s neighbors were fans of his DIY a worthy endeavor to which no one could object—except,
haunted house, “Skullman’s Ghastly Garage,” except for one, perhaps, code enforcement bureaucrats. Miner said she was
who reported him to the township. Now he has to scale back told by a city worker that the ramp did not meet city require-
or face fines. “I was really upset,” said one neighbor. “ It’s a ments, so she would have to have it torn down or face a
shame because this has been a great community outreach fine. Yet, the ramps, which are all built by volunteers, have
and also helping out people who need food.” Fillion did not a stellar safety record. “In Dallas County alone, we’ve built
charge money for entry, and instead asked visitors to bring almost 5,000 ramps,” said Gary Stopani, who built Miner’s
canned goods for a local food bank. ramp. “We’ve built over 15,000 statewide since 2006 and
we have yet to have a ramp fail due to safety.”
Do You Have a Permit for that Driveway—What, We
Gave You One? Do You Have a License for that Rocket?
Michael Zydeck has been facing off against the City of East A driver in Belgium was fined $78,000 for speeding—at
Lansing, Michigan, over … a driveway. Zydeck, a radiologist 432 miles per hour, half the speed of sound—in an Opel
who lives in Plymouth, Michigan, bought a house in Lansing Astra, last May. An engineering breakthrough accidentally
for his daughter to live in while attending Michigan State uncovered by vigilant Belgian traffic cops? Not quite. The
University. The Zydeck family, wanting more room to park, astonishing recorded speed was due to a speed camera
decided to expand the driveway. After Zydeck’s first contrac- coding error. Traffic authorities acknowledged the error and
tor got a permit and began work, a neighbor asked the city voided the fine. Unfortunately for the driver, police deter-
to stop the project, claiming the permit had been wrongly mined that he did actually speed, going 60 kph (37 mph) in
approved. After months of bureaucratic wrangling and false a 50 kph (31 mph), and issued him a ticket for around €50,
starts, the city offered Zydeck $1,500 to shrink the driveway, or around $57. The driver posted an image of the bank-
which may not be enough to cover the costs. Zydeck’s attor- breaking ticket on Facebook, where it got 1,700 likes and
ney, Mark Grebner, said: “By my calculations, the city’s errors 1,200 comments. According to The Telegraph, one com-
have induced my client to spent approximately $18,650 for menter noted: “What’s the point of having a Lamborghini
a driveway which would have cost $8,000 if he had not had when you can go 696kph in an Astra?”
the misfortune to build it in East Lansing.”