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The long, losing war against government regulation

Dan Farber, professor of law | August 13, 2013

Since the time the laws were passed, the anti-regulatory movement has fought to roll back the health and safety regulations of the 1970s. The battle has been fierce. As with the trench warfare of World War I, there have been many loud and hard-fought battles, but the outcome has generally been to move the lines only a small distance. Moreover, anti-regulatory forces seem to be very slowly giving up ground. The trend is for new legislation to expand and strengthen regulation one step at a time.

In Reagan’s first inaugural address, he said that “government is not the solution to our problems, government is the problem.”  But Congress hasn’t repealed any significant health and safety regulation. The Clean Air Act, the Clean Water Act, Superfund, OSHA and the rest are still on the books.  In fact, even under Reagan and his two Republican successors, Congress still continued to expand federal regulatory authority.

Under Ronald Reagan: In 1984 and 1986, Congress strengthened major statutes dealing with toxic waste. It also passed the Commercial Motor Vehicle Safety Act in 1986 and the Rail Safety Improvement Act in 1988.

Under George H.W. Bush:   Congress strengthened the Clean Air Act, including new protections against acid rain.  It also enacted the Oil Pollution Act of 1992. In addition, Congress passed the Prescription Drug User Fee Act of 1992 and the Federal Motor Carrier Safety Amendments of 1999.

Under George W. Bush:  Despite control of Congress by Republicans during six of his years in office, Congress passed The Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2006 (SAFE-TEA) (with new provisions on auto safety), the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005, the Mine Improvement and New Emergency Response Act (MINER), and the Consumer Product Safety Improvement Act of 2008.

The expansion of federal regulatory authority has been very slow — but the gains have been permanent, so anti-regulatory forces are losing the game a few feet at a time. This must be profoundly depressing for those who have never accepted the role of government regulation in protecting the public’s health and safety.

Cross-posted from the environmental law and policy blog Legal Planet.

Comments to “The long, losing war against government regulation

  1. I don’t get the problem. I see that politics is screwy, but I remember when I was young, in the 70’s; and whenever we had to drive through L.A. my eyes would begin stinging and tearing because . . . . we were driving through L.A, and the air was horrendous. Doesn’t anybody remember that? Why aren’t these factors mentioned in your analysis on regulation.

    I for one am happy that when we were all experiencing our air being sucked away, gov’t, corporation, anybody, thought it was time to do something, and did.

    Trying to make an ideology, or a religion out of something like “anti-regulation” is stupid. The gov’t should get involved when it’s needed. Simple as that. Otherwise, nobody will behave. God knows Corporations have no incentive to behave; we’ve seen it time and time again.

    Politics is pragmatics, and that’s the way it should be.

  2. Regulation benefits Congress and the President, because it creates something that needs influencing, and they trade the possibility of that influence for contributions.

    Regulation benefits large companies against small competitors, because regulation requires substantial overhead, that inherently favors large competitors against small, and because it creates the opportunity for capture. There is a reason why President Obama meets with CEOs of huge companies when he wants to show his commitment to jobs, even though huge companies almost never create jobs and usually eliminate them (as they consolidate competitors rendered weaker by regulation, among other considerations).

    Regulation, politics as we practice it, and crony capitalism are partners, and the media (often a beneficiary of crony capitalism, especially on the broadcast side) amplifies the propaganda that benefits the huge and entrenched incumbent at the expense of the small and the insurgent. The opponents of regulation are too defuse to win, most of the time, so it is not surprising that regulation continues to grow, unabated.

  3. Ah, but have these regulations been enforced, and have regulatory agencies been sufficiently funded and staffed to effectively perform their mandates?

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