Congress Must Prevent a Progressive OMB Rewrite of 'Circular A-4' Guidance on Preparation of Regulatory Impact Analyses

The last step cannot be first; Congress, to the extent its substantial inquiry, oversight and appropriations authorities allow, should not permit a White House Office of Management and Budget "Circular A-4" rewrite of Regulatory Impact Analysis guidance to proceed without forcing OMB and OIRA to address certain elements of decay in current regulatory oversight processes that the re-write as presented will not only fail to repair but worsen given a politicization that has converted OIRA from a watchdog against regulatory excess into a promoter of progressive regulatory conceits (see the Biden "Modernizing Regulatory Review" Memorandum and Executive Order; and preambles to recent editions of the "Unified Agenda") . Some of these underlying disabilities and disqualifiers include:• The failure to comply with existing regulatory disclosure law such as the "Regulatory Right-to-Know Act" (the "annual" Report to Congress was last seen for fiscal year 2019) and the suspect (or at least untrackable) adherence to mappable reporting of guidance documents to both Congress as the Government Accountability Office;• The recent abandonment of executive order-based regulatory streamlining, protections for the regulated, and accountability for civil servants; and certain unilateral agency moves dampening regulatory disclosure.• The recent abandonment of guidance document portals and formal mandatory procedures for the preparation of such documents;• The underlying paucity of cost-benefit analysis in spite of the homage continually paid to it; and the wholesale failure to provide the aggregate regulatory cost estimate that is not only mandatory but necessary to claims of "net-beneficial" policy within some reasonable regulatory budget constraint;• Related to the failure to provide an aggregate cost estimate, the failure to recognize most categories of government intervention in assessing burdens of the administrative state; • A failure to recognize that the "market failure" and "behavioral biases" emphasized by OIRA in the Draft Circular A-4 as rationales for rulemaking are swamped by political failure;• The continued omission of independent agencies from central review, even as their presence in the ongoing pursuit of progressive ends now being incubated rather than restrained by OIRA is surging;• The non-reality of claims of agency "expertise" (the underlying justification of the Administrative State) in both legacy and frontier sectors, which again threatens to lock many enterprises into inappropriate regulatory capture and sub-optimal paths of evolution, dampening wealth creation and consumer well-being. Recent passage of extraordinarily interventionist legislation such as the CARES Act, Infrastructure law, CHIPS Act and the Inflation Act heighten this grave problem and will feed the revamped circular a4's appetite for regulatory escalation;• The disregard of federal monopsony and monopoly power; and the related exploitation of federal spending, procurement and contracting heft to advance malignant regulatory ends, increasing that power stil further;• The emphasis on "distributional effects," "equity" and "net benefits" in the Draft Circular A-4 is a recipe for purposefully expanding federal government authority past a point of no return for liberty and constitutional normalcy.Congress should recognize that already, even without the Circular A-4 revamp, Biden has raised the threshold for the "significant" regulations that ostensibly receive more scrutiny from $100 million from $200 million annually.The White House Circular A-4 rewrite with its rapid deadline for comments must be seen in context of the progressive legislative transformations of recent years that are increasingly international in scope, and proclamations-of-enablement for this agenda by recent acting OIRA leaders. The steps that should be taken instead involve regulatory liberalization and shrinkage of bureaucracy. Congress should press pause on a process that is designed to make it easy to add but not subtract regulation