In a post on "Balkinization," regarding the amended executive order on regulatory review (see my January 23 GULC blog on the amended order), Jack Balkin argues that the amended order is of a piece with regulatory developments going back at least to the Reagan Administration. There is some truth in Balkin's most general claim. But Balkin's specifics leave much to be desired. Balkin writes:
[T]he Bush Administration has built on the Clinton model more than the Reagan model. Instead of trying to halt regulation, it has sought greater political control over advisory documents and required a greater showing that regulation addresses a genuine market failure. . . . The reasons why Bush has followed Clinton more than Reagan flow from the rise of Bush's big government conservatism, a conservatism that happily uses all the levers of federal power to benefit his political allies, including most particularly business interests, who remain central to the Republican political coalition. The Bush Administration does not so much seek to stop regulation as to mold it in a decidedly business-friendly way.
Contrary to Balkin's claim, the Bush Administration has not only actively tried to "halt regulation," but it has succeeded in doing so. The first head of the White House regulatory office under President Bush, John D. Graham, made it his practice to return rules to agencies if the rules were either not justified by cost-benefit analysis or not consistent with the President's policies and priorities. Many rules went by the boards this way. Many others were so watered down during the process of regulatory review that they emerged scarcely recognizable -- and barely stricter than no regulation at all. Balkin is correct that virtually all of the regulations that have managed to pass through the White House's fine sieve have been "mold[ed] in a decidedly business-friendly way," but he has missed the fact that many rules haven't made it through the filter at all.