Regulation Nation

I’ve been meaning to respond to Charles Krauthammer’s latest column. In it, Krauthammer accuses the president of circumventing the legislative opposition to his “social-democratic” agenda by simply issuing executive regulatory orders instead. He lists three such instances of regulatory bypass and I think he’s wrong, or certainly disingenuous, on all three.

His first qualm is the Department of the Interior’s recent assertion of authority to designate public lands as “Wild Lands”, thus exempting them from private development. This decision reverses a previous regulatory scheme imposed by the Bush Administration in 2003. The issue was that then-governor of Utah, Michael Leavitt, wanted to sell oil and gas leases on land previously designated as protected wilderness by the Clinton-era Bureau of Land Management. Utah sued the federal government for the right to sell the oil leases. The court rejected the legal case but the Bush administration stepped in, led by Bush’s Interior Secretary Gale Norton, and brokered a settlement that opened up 2.6 million acres of BLM-protected land to development. The settlement had no public involvement of any kind. Surprisingly, Krauthammer did not write any columns at the time about the Bush administration’s blatant embrace of government by regulatory stealth. And laughably, a few months later Bush named Michael Leavitt—champion of environmental protection that he was—to head the EPA.

Krauthammer’s next regulatory conniption is also environment-related:

The very same day [as the Interior "Wild Lands" outrage], the Environmental Protection Agency declared that in 2011 it would begin drawing up anti-carbon regulations on oil refineries and power plants, another power grab effectively enacting what Congress had firmly rejected when presented as cap-and-trade legislation.

Let’s take a look at the charge that Congress “firmly rejected” cap-and-trade legislation. First, half of Congress, the House of Representatives, firmly approved cap-and-trade, and passed it in June of 2009. So Krauthammer is off to a bad start.

To find out what happened to the legislation in the Senate, I recommend this fascinating recent profile by Ryan Lizza in the New Yorker. It’s basically a public-choice theory train wreck. Main culprits: a cynical reversal by John McCain of his decades-long commitment to the issue; Mitch McConnell’s brilliant strategy of threatening retribution to any Republican senator who cooperated with the president on anything; a few key White House and Harry Reid blunders; parochial nonsense from Senators representing heavy carbon-emitting states; the BP oil spill; personal pique by Lindsay Graham. All of it conspired in the end to kill the bill. And of course, the Senate didn’t even “firmly reject” the legislation, because the legislation was never voted on, requiring as it did a super-majority of 60 votes to break a Republican filibuster. In a less dysfunctional majoritarian Senate world, the deal would have got done anyway.

And whether you like cap-and-trade or not (I frankly find the merits overwhelmingly difficult to assess), the EPA has for decades asserted, rather uncontroversially, the authority to regulate a long list of air pollutants and toxins. And at least since 1990 the EPA has mentioned carbon dioxide and methane as future areas where emissions control may be warranted.

Even if cap-and-trade is not your thing, the basic idea of finding a way to internalize the overwhelming externality costs of carbon emissions ought to be a sacrosanct conservative tenet. It’s hardly merely another signpost along President Obama’s nefarious subterranean “social-democratic transformation.”

The final case of Krauthammer’s dissembling deals with Medicare’s recent announcement that they will provide a means for patients to receive end-of-life counseling annually. Krauthammer says this executive regulation revives similar provisions which had to be removed from the final health care reform legislation when they were demonized as “death panels” by demogogues.

Thing is, Krauthammer is not against end-of-life counseling. In 2009 Krauthammer wrote a very measured column about the issue. He dismissed the death panel pablum out of hand, and wrote elegantly about the difficult treatment decisions facing families whose loved one is sick or dying. The provision in question would have added Medicare coverage for end-of-life conversations between doctor and patient. Krauthammer was concerned that this created an incentive for the doctor to subtly nudge the patient toward “hospice care and palliative care and other ways of letting go of life,” rather than toward another last ditch high-tech invasive treatment. But I think Krauthammer is wrong about the direction of this incentive. As Atul Gawande noted in his excellent New Yorker piece on the subject last August, most physicians are deeply uncomfortable with the idea of advising terminal patients to discontinue treatment. I think the emotional (and financial) incentive points strongly to nudging patients toward ever more expensive, invasive interventions which have little chance of meaningfully prolonging life. I don’t blame physicians for being discomfited around this topic; and if you squint hard enough it can perhaps be seen as more humane to encourage hope for a miraculous turnaround, or otherwise perpetuate the illusion that medical science always has something else in its goody bag. But as Gawande argues, this illusion is not fair nor helpful to the patient:

We [physicians] are increasingly the generals who march the soldiers onward, saying all the while, “You let me know when you want to stop.” All-out treatment, we tell the terminally ill, is a train you can get off at any time—just say when.

But for most patients and their families this is asking too much. They remain riven by doubt and fear and desperation; some are deluded by a fantasy of what medical science can achieve. But our responsibility, in medicine, is to deal with human beings as they are. People die only once. They have no experience to draw upon. They need doctors and nurses who are willing to have the hard discussions and say what they have seen, who will help people prepare for what is to come—and to escape a warehoused oblivion that few really want.

Surely Medicare has a roll in facilitating these hard discussions, and compensating doctors who initiate them for the good of the patient, just as private insurers are able to do.

Even as a political attack I don’t understand Krauthammer’s general motive here. Surely he knows that what can be done by regulation today can be undone by regulation in the future. He should in fact cheer Obama’s preferred method of “social-democratic transformation” by means of stealth executive regulation, since the whole nefarious business can be signed away with a sweep of a subsequent executive’s pen. Let him designate all the wilderness he likes! President Palin can still pave over it all in 2013. And let him regulate toxins out of our air! President Gingrich (ha!) can just reverse it all and let the Koch Brothers toxify the whole damn thing over again.

But the same legislative dysfunction and abdication that leads to more assertion of Obama’s executive power might also someday work against Krauthammer’s preferred policy outcomes. Congress has been outsourcing its vital functions to the executive branch, willfully, for a very long time. That partisans like Krauthammer want to selectively pick on executives from the opposition about this state of affairs is no surprise. But it’s a cynical and hypocritical and unserious argument and ought to be regarded as such.