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Will the 2011 Congress Have the Backbone to Deregulate?

The opinions expressed by columnists are their own and do not necessarily represent the views of

In 2011, the two major legislative initiatives of the tea party Congress (pray the voters deliver such a congress) will be to get a grip on the deficit, and to begin to reverse the intrusion of the federal government in American lives and business.

It remains to be seen whether Congress will have the guts -- and even the tea party public will give their support-for the entitlement cutting that deficit control and long-term fiscal soundness will require.

Procedurally, however, the method is pretty straightforward. Congress passes a 10-year budget resolution, then passes appropriations and other bills to carry out those objectives. And, of course, the president has to sign them into law. That may result in the greatest Washington political battle since slavery, but at least the legislative method is obvious and straightforward.

However, the method for reversing the federal intrusion and excessive regulation in our lives and business is not obvious. To attempt it without control of the executive branch just compounds the difficulty.

And yet, if the public elects a Republican majority in one or both houses, they must immediately put their collective shoulders to the cause of reversing federal intrusion.

Between 1978 and the late 1990s, under four presidents, real legislative efforts were taken to reduce by statute some regulations. For example, the 1978 Airline Deregulation Act removed governmental regulation of fares, market entry and routes.

But these rifle-shot deregulation statutes -- which took massive bipartisan and bicameral support over several years -- have still left the United States over all far more regulated and intruded upon than we were 30 years ago.

Sometimes, the direct source of the intrusion is Congress. In 2007, President Bush signed into law the Energy Independence and Security Act, which included the idiotic provision that outlaws the incandescent light bulb starting in just 14 months -- January 2012. It is possible that the new Congress may be able to reverse that by statute -- they must certainly try to repeal it by putting a provision in a "must pass, must sign" bill.

Obviously, the major statutorily enacted regulatory bill that the new Congress must try to repeal is Obamacare (more about which in a future column.)

But the greater part of federal intrusion is generated by the permanent regulatory bureaucracy that burrows away in almost all our federal agencies. Sometimes, they are authorized by Congress to create and enforce regulations (like the incandescent light law). But over the generations, the culture that exists amongst the regulatory bureaucrats drives them to constantly seek out new targets for regulation and new methods for entangling Americans in their webs.

I experienced it firsthand when I was deputy assistant secretary of education in 1982 under President Reagan. Our 'crats conspired with congressional staffers, members and lobbyists to try to foist excessive regulations against the policy of Reagan's administration. The 'crats even organized hundreds of protesters to encircle the Department headquarters in Washington to support their willful opposition to official Reagan governmental policy.

Fundamentally, there is a permanent war of attrition between liberty and the federal regulatory bureaucrats. A war of attrition is a resource war. In both WWI and WWII, the side with the most soldiers and industry (the allies) won.

Although I don't believe it has ever been tried, a new Congress could try to use its power of the purse to begin to "atrit" the regulators. That is to suggest Congress should order permanent, immediate and massive staff reductions among the regulators. Defund and de-authorize (say 50 percent) of the regulatory staff positions.

It actually takes a long time and a lot of hard work to conceive, write and legally enact a new regulation. If there were only half as many bureaucrats at EPA, for example, they simply wouldn't have the time to pass as many oppressive regulations as they do.

That would both slow down new regulations and make it harder for the regulators to enforce regulations already on the book.

Then, if the tea party Congress and the public had the stomach for it, they could start rolling back existing regulations.

For instance, would it drive America into some Dickensian free-market hell to roll back the EPA's last 10 years of regulations (or 20 years, or even five years?) Would it be possible, bit at a time, to return to the regulatory regimen of, say, 1970 -- or, if one could dream, 1960). Of course, if there are a few technical adjustments after the rollback, they could be passed by statute -- not by regulators.

My basic point is that while regulations have been passed one at a time over many decades, they can only be undone by collective repeal and resource deprivation.


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