Obama Administration

New York Times' Analysis of 'The Obama Era' Focuses on All Those Oppressive New Rules

His legacy will include hundreds of new federal regulations.


Barack Obama
Department of Defense/Sipa USA/Newscom

It's extremely telling that the New York Times, for the start of a series of pieces exploring Barack Obama's ultimate impact in his two terms as president of the United States, bluntly refers to its first chapter as "The Regulator in Chief."

This first of what will be six deep dives into Obama's legacy is officially headlined "Once Skeptical of Executive Power, Obama Has Come to Embrace It." Yeah, no kidding. The writers, Binyamin Appelbaum and Michael D. Shear, note early in this first chapter that the Obama administration has finalized 560 "major regulations" that have significant impact. That's 50 percent more than the number under President George W. Bush, who was not much of an advocate for small government himself.

The president has been pretty obvious about why he took such a tack: He wanted to accomplish certain things and Congress (and the opposing party) stood in the way. This is one of the reasons Congress exists, but the massive expanse of our regulatory state provides a million avenues for the executive branch to create its own rules. And Congress has been reluctant to stop it. Keep in mind that Congress does have a mechanism to stop the implementation of new individual executive branch regulations if the members find them objectionable with the Congressional Review Act (CRA). However, the law is never used because such efforts can also be vetoed by the president. So in a sense, the Congressional deadlock has also allowed Obama to implement his policies without having to worry overly much about building a decent coalition of support from Congress.

The Times piece operates on the assumption that Obama's intentions are honorable, and that his regulation expansion is literally (and the story literally uses the word "literally") about placing a "higher value on human life." The use of "literally" is not entirely uncalled for: The story discusses a decision by the Department of Transportation to increase the estimated "value" of preventing a human's death from $6.6 million to $9.4 million and how that calculation was used to demand all sorts of additional safety regulations.

The story does not ignore that these regulations have had added major costs to businesses and consumers, though it does not seem interested in exploring how that can ultimately bounce back and harm the people the administration seems to think its regulations are helping. (Consider the likely real-world consequences in the administration's efforts to make more salaried employees subject to overtime regulations. And the insurance companies ending participation in Affordable Care Act exchanges.) The story mentions things like the Environmental Protection Agency (EPA) becoming more aggressive in "protecting thousands of waterways and wetlands" but fails to consider the absurd consequences of the agency treating the average landowner as a potential criminal, and while it mentions courts "temporarily blocking" some rules, doesn't mention that the Supreme Court unanimously smacked down the EPA over the summer in its attempt to prevent landowners from seeking judicial review of its determinations.

Also of interest: Not all new executive orders were about putting the screws to citizens with new regulations. Some were actually about easing them and giving us more freedom: ending travel restrictions to the United States for people with HIV, approving genetically engineered salmon, allowing over-the-counter access to Plan B birth control (though the federal courts also played a role in easing access).

But even when executive actions increase citizens' freedoms, what they're really doing is counteracting other regulations. The examples in the previous example are all of situations where the government had already been intruding in places where it shouldn't have been, justified by the same kind of reasons that inspired the Obama administration to introduce its own new raft of regulations. Obama's technocrats insist the process isn't politicized, but every administration insists that its regulations aren't politicized. That's inherently absurd, because they're obviously driven by the president's agenda, which is obviously pushed forward by those who support him. Of course it's political.

The story knows this and so it essentially ends with a warning:

But the scope of federal regulation has continued to grow, and the trend is likely to continue. Presidents, both Democratic and Republican, have asserted greater power in recent decades to dictate the shape of regulations, while Congress has become less specific in its instructions.

"We live in an era of presidential administration," Elena Kagan, a Harvard law professor since appointed by Mr. Obama to the Supreme Court, wrote in a 2001 paper that reviewed the expansion of the regulatory state.

Both Mrs. Clinton and Mr. Trump would most likely face significant congressional opposition to their major campaign promises. To sidestep Congress, they now have the legacy of Mr. Obama. Mr. [John] Podesta, now Mrs. Clinton's campaign chairman, said the appeal of taking action without Congress is hard to resist.

"You come in with a strategy of going to the Hill, certainly where you can find some cooperation," Mr. Podesta said. But when that fails, writing regulations "is a way to get much more substantial throw-weight behind solving the problem."

Or … is that ending actually intended as a warning? When I was a young journalist I was taught that if you ended a story with a quote, you were—deliberately or subconsciously—telling the reader what they should take away from the piece. What does it say when the last word goes to the campaign chairman for one candidate essentially suggesting that they're going to continue Obama's tactics? That depends on what you think of the regulations Obama has passed.