Badly Written Bad Rules


The Wall Street Journal

Badly Written Bad Rules

This excerpt originally appeared in The Wall Street Journal on December 28, 2011.

Then there's the Affordable Care Act. Christopher Conover and Jerry Ellig of the Mercatus Center at George Mason University, in a trio of forthcoming papers, systematically examine every rule issued to date to create the new health-care entitlement.

They conclude that "the federal government used a fast-track process of regulatory analysis that failed to comply with its own standards, and produced poorly substantiated claims about the ACA's benefits and costs"—including an upward bias for benefits, a downward bias for costs, and numerous material omissions. Little wonder for a law that contains the phrase "the Secretary shall" 1,563 times.

The Mercatus Center evaluates all major rules that cost over $100 million a year on a composite score of a dozen regulatory best practices. The Health and Human Services Department's highest-scoring ObamaCare rules came in at 25 out of 60 points, the lowest at 13. These are not merely bad grades. They are relative Fs on the regulatory curve—about 35% to 40% lower than the averages for the other rules that the executive branch put out in 2008 and 2009. The ObamaCare rules score lower than other HHS rules in 2009.

Messrs. Conover and Ellig conclude that regulators working on deadline usually resort to "analytical shortcuts, leading to lower-quality decisions." The Bush Administration's post-9/11 regulatory overload was no great shakes either. But at least there the White House was working to protect national security rather than usher in a new social and economic order through the Federal Register.
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