Monthly Archives: December 2013


There 1,300 separate federal organizations that are a part of America’s national government. These entities have a more direct and personal impact on the daily lives of the citizenry than any elected official, court, or legislative body, through the rules and regulations they adopt.

There is a growing concern that regulations from these agencies have created an alternative and largely unaccountable system of governance, with an expense factor that is harming the national economy.

While the issue of adverse regulatory impact has been a flashpoint for decades, the increase of current and proposed federal agency activity and major rules or regulations related to them has brought a new emphasis on what many believe to be a roadblock to economic recovery and a rejection of the American ideal of participatory government.

A Newsmax article quotes Douglas Holz-Eakin, head of the American Action Forum noting that “It would be difficult for anyone to pretend that this isn’t a high water mark in terms of regulation,” Holz-Eakin describes the Obama years as an “incredibly intense period of regulation.”

According to the Congressional Research Service’s May report on “counting rgulations,” the number of final rules published each year is generally in the range of 2,500-4,500. During President Obama’s first term, an average of 3,262 final rules were enacted, of which a yearly average of 82 were considered “major.” In contrast, a yearly average of 62 “major” rules under President George W. Bush’s administration were enacted.

A Factcheck report which used some data supplied by the Heritage Foundation, found that:

“In its 2011 report to Congress, the [Office of Information and Regulatory Affairs] OIRA reported that the estimated cost of federal regulations under Obama from Jan. 20, 2009, (when he took office) to the end of the 2010 fiscal year was somewhere between $8 billion and $16.5. During the same initial stretch under Bush, the estimated cost of new regulations was between $1.3 billion and $3.4 billion. OIRA inflation-adjusted all figures to 2001 dollars. … it is clear that the cost of new regulations issued in the first six years of Bush’s administration – ranging from a midpoint of $1.3 billion in 2002 to a midpoint of nearly $5 billion in 2005 – was far below the average of $7 billion a year under Obama…

“By Heritage’s count – including the regulations from independent and executive agencies – the Bush administration issued regulations that cost about $60 billion over 8 years. The Obama administration, meanwhile, has imposed new major regulations with reported costs of about $40 billion in just over two years. Even with a handful of rules that reduced regulatory costs by $1.5 billion, that still leaves a net increase of more than $38 billion… That translates to a much higher average, per year cost of regulations under Obama..”

During the past four years, oppressive-and frequently incorrect-actions by departments such as the Environmental Protection Agency have become an increasing problem.

According to a July report by the Congressional Research Service on EPA regulations:

“Since Barack Obama was sworn in as President in 2009, the Environmental Protection Agency (EPA) has proposed and promulgated numerous regulations implementing the pollution control statutes enacted by Congress. Critics have reacted strongly. Many, both within Congress and outside of it, have accused the agency of reaching beyond the authority given it by Congress and ignoring or underestimating the costs and economic impacts of proposed and promulgated rules. The House conducted vigorous oversight of the agency in the 112th Congress, and approved several bills that would overturn specific regulations or limit the agency’s authority. Similar action may occur in the 113th. Particular attention is being paid to the Clean Air Act, under which EPA has moved forward with the first federal controls on emissions of greenhouse gases and also addressed emissions of conventional pollutants from a number of industries; congressional scrutiny has focused as well on other environmental statutes and regulations implemented by EPA.”

Americans are used to (but not content with) the vast numbers of rules and regulations, and related explanatory documents, in some agencies. The Internal Revenue Code is approximately 11,000 pages long, according to Politifact.

Obamacare has about 10,535 pages. (The cost to the public, according to theAmerican Action Forum, of exchange-related regulations will be over $5.3 billion and 16 million hours of paperwork.) “According to administration data, the listed paperwork burden of the exchanges exceeds 16.6 million hours, $558 million in direct costs, and 40 new forms. Examining the regulatory impact analyses from exchange regulations, the total cost to states and private entities approaches $5.3 billion. Including all current requirements under Health and Human Services (HHS), the agency imposes 645 million hours of paperwork, $35.3 billion in costs, and 4,116 federal forms.”

Moving up swiftly in terms of numerous and onerous regulations is the Environmental Protection Agency. According to the U.S. Chamber of Commerce,

“The past 40 years have seen significant declines in the copper mining, steel, textile, furniture, coal mining and forest products industries. While a variety of factors have played a role in the decline of these industries, a common thread running through all of them has been the role of regulatory mandates and costs. Even when regulations are not the primary cause of change, regulations imposed on an industry can provide the tipping point that leads to plant closures and adverse economic impacts that otherwise might have been avoided or cushioned over time. While EPA continues to issue regulations to protect the environment, it must also be forthcoming and provide Congress and the American people with methodologically complete estimates of the impact its regulations may have on jobs and communities.”

Regulations based on the Dodd-Frank financial reform law have also been cited as a key added burden.

Laws are passed in public, with coverage in the media and public debate. But frequently, regulations structuring how those laws are enforced are adopted with minimal public oversight. Even worse, on occasion, they go beyond the law and impose restrictions that supporters of the legislation upon which they are based never intended. Individuals can find themselves subject to fines or even imprisonment based on harsh rules that, aside from obscure mentions in the Federal Register, are implemented beyond the scrutiny of everyone except bureaucrats and lobbyists.

America’s moribund economy, burdened by debt that has skyrocketed from 38% of gross domestic product in 2007 to nearly 75% today, has caused unemployment to soar from 6.7 million to 23 million in that same period of time.

The uncertainty and overregulation imposed on the private sector during the past four years has been a major cause of this. Reps. Greg Walden (R-Or)
and Fred Upton (R-MI) recently noted in a published article that “…costly regulations put business in a state of paralysis, and keep them from investing and hiring workers. The result is mediocre job growth and a stagnant economy.”

Reports are numerous that job creators are greatly hindered in their efforts by the rising regulatory tide. A Western Free Press article cited a number of examples:

“Government Seems to continually increase the number and complexity of the regulations governing small businesses, restricting their ability to grow and prosper,” according to Andrew F. Puzder CEO of CKE Restaurants, which employs 70,000.

“Tremendous volatility and uncertainty created by our regulatory system [is] costing American jobs,” notes Robert A. Luoto, president of the Cross & Crown logging Company.

The Economist examined the impact of regulations on commonplace activities. Its report provided salient examples, including:

“Every hour spent treating a patient in America creates at least 30 minute of paperwork, and often a whole hour. Next year, the number of federally mandates categories of illness and injury for which hospitals may claim reimbursement will rise from 18,000 to 140,000. There are nine codes relating to injuries caused by parrots, and three relating to burns from flaming water skis.”

America, at one time a leader in free enterprise, now ranks only 10th on the global Index of Economic Freedom compiled by the Wall Street Journal and the Heritage Foundation. Hong Kong, Singapore, Australia, New Zealand, Switzerland, Canada, Chile, Mauritius, and Denmark all ranked higher.

The $70 billion in increased regulatory burdens over the past four and one-half years, the result of 131 major new regulations, is a central reason why America continues to lag behind those other free markets. This includes a $23.5 billion increase in 2012 alone. (Adam White, writing in the Weekly Standard, also stressed that these costs do not include “lost opportunity” expenses for blocked activity such as the Keystone XL pipeline.)

The heavy burden of increased regulatory control had been steadily rising before President Obama’s dramatic increases. In 2007, President Bush signedExecutive Order 13422, which required federal agencies to submit any proposed new policy guidance to the Office of Information and Regulatory Affairs (OIRA). Bush’s rule demanded that federal agencies demonstrate that there was a “market failure” that justified government action.

President Obama, in response to widespread public outcry, also issued an executive order requiring a government wide review of outdated regulations, but little action has resulted, and, in fact, the regulatory burden has actually increased. Part of the reason for its ineffectiveness is that it basically examined only past regulations, essentially those from prior administrations, and has no impact on what many have called the “tsunami” of new and onerous rules emplaced by the federal government under the current White House.

According to Thomas Donohue, President of the United States Chamber of Commerce:

• The average regulatory cost for each employee of a small business exceeds $10,000 per year;
• Businesses with fewer than 20 employees incur regulatory costs 42% higher than larger business of up to 500 employees;
• The number of costliest rules (generally those with a $100 million annual economic impact) has increased by more than 60 percent in just the decade from 2002-2012, from 136 economically significant rules listed in the government’s regulatory agenda to 224 rules;
• The total number of pages in the Code of Federal Regulations, which lists all regulations, has more than doubled since 1975.
Americans are concerned not only with the increased cost and number of new regulations, but the manner in which they are imposed. As noted by the U.S. Chamber, new rules “are imposed through a system that operates without effective checks or balances, or accountability. Currently, nearly all major regulations go into effect without our elected representatives in Congress ever voting on them.

“The process has lost all balance as Congress has yielded power to the federal agencies without proper accountability, and without taking responsibility for what agencies are doing…

“What’s more, agencies are often not transparent. Unaccountable agencies rarely have to justify decisions they make that harm the livelihoods of millions of Americans because the process does not allow for effective judicial or other independent review of major rules.

“Agencies can do this because they do not have to prove their assertions are based on sound fact, science, or economics. Rather all the agency must do is point to anything in the agency record that rationally supports their assertion, and the courts give the agency deference over the public in deciding the validity of the rule…”

The problem is accelerating, notes Donohue. The Obamacare legislation, 2,400 pages long, created 159 new panels, commissions, regulatory bodies and agencies. It follows on the heels of the 2,319 page Dodd-Frank Act, which calls for 400 new rules throughout 20 agencies.

The use of the regulatory process to enforce goals, often extreme, that could not succeed in a public Congressional vote has led to a significant upheaval in the energy sector.

As reported in a prior NEW YORK ANALYSIS report, House Energy and Commerce Committee Chair Fred Upton (R-MI) and Energy and Power Subcommittee Chair Ed Whitfield (R-KY) have noted that the “EPA is doubling down on its economically destructive plan to essentially end the construction of new coal-fired power plants in America…The consequences will be more job losses and a weaker economy. These stringent standards will actually discourage investment and the development of innovative new technologies that can help us meet the world’s future energy and environmental challenges….In the year President Obama took office there were over 18,600 employed in the coal industry in my state. But as of September 2013, the number of persons employed at Kentucky coal mines is only 13,000… And the picture is getting worse instead of better.”

“Federal Regulatory Agencies have become the unelected fourth branch of government”
–Frank Scaturro, former Counsel for the Constitution of the Senate Judiciary Committee

Dr. James Sagner, who has extensively reviewed and written about the nation’s overregulation issue, believes that U.S. businesses face a “worldwide economic crisis” due to the federal government’s “outdated, unrealistic, and crippling” regulations. According to Dr. Sagner, the practice has led to an exodus of employment out of America. The effects permeate American society in numerous ways. He advises that the only viable and timely solution is the elimination of regulations that prevent U.S. enterprises from competing on a level playing field with our foreign competitors.

A Competitive Enterprise Institute study by Clyde Wayne Crews (originally published in Forbes) notes that jobs are lost when regulation pushes manufacturing offshore.

“Regulations that make it more expensive to create output that could have otherwise been created with less input must impact either existing jobs somewhere in the economy, or job creation and growth down the line…Policymakers should address regulation’s distributional effects and recognize that worker dislocation and other consequences are costs that some outside regulator imposed who needs to be held accountable…

“It would be nice to regularly double GDP again, the way the U.S. now doubles spending and regulation. Clarifying why high unemployment exists in the first place, and its possible linkage to the vast body of federal regulation and the rulemaking process, is needed.

“A recent Gallup Poll noted that small businesses put government regulation at the top of a list of complaints. In a global economy, understanding regulatory costs and their job impacts is even more urgent. … People need jobs to not be poor; policymakers owe a duty of examining job impacts of their economic interventions before they impose them.”

In testimony last March before Congress, senior researcher James Gattuso summarized the issue:

“Federal spending is only one part of the burden imposed on Americans by the federal government. Regulations impose hundreds of billions, or even trillions, of dollars in additional costs. These burdens not only increase the prices for consumers, but keep enterprises from growing and jobs from being created.

“During the past four years, the regulatory burdens placed on the American people and economy have grown at a breathtaking rate. During President Obama’s first four years in office, over 130 major rules increasing regulatory burdens (roughly defined as those costing $100 million or more each year) were adopted by agencies, imposing some $70 billion in new annual costs according to preliminary calculations based on agency estimates. By comparison, about 50 such rules, with about $15 billion in new annual costs, were imposed during George W. Bush’s first term…

“And more regulation is on the way. According to the latest Unified Agenda of Federal Regulations, 131 new major regulations are already in the pipeline. That compares to 90 in process when President Obama took office and only 56 in the spring of 2011…

“Under present practice, Congress gets to take credit for enacting popular but vague legislation but then can plausibly deny responsibility for the costly regulations that result. Thus, for example, the FCC is charged with furthering the “public interest,” the EPA with regulating “pollutants,” and the new Consumer Financial Protection Agency with limiting “abusive” financial practices without a clear indication of what those terms mean. This allows Congress to stand on the sidelines, ready to take credit or to denounce the agencies’ actions, rather than take responsibility itself…

“The result is power without accountability… Regulators have their own interested agendas. And political considerations, shockingly, do influence the process. Spend an hour in front of most any agency and watch the lobbyists flow in and out if you doubt that…Moreover, most regulatory decision-making requires more than scientific expertise. It involves value judgments as to what burdens will be placed on the American people for what benefit. Such decisions properly involve Congress…”


The growing economic impact of overregulation has become a hot topic for observers of America’s increasing financial woes. The Economist publication opined:

“America needs a smarter approach to regulation. First, all important rules should be subjected to cost-benefit analysis by an independent watchdog. The results should be made public before the rule is enacted. All big regulations should also come with sunset clauses, so that they expire after, say, ten years unless Congress explicitly re-authorises them.”

The problem appears to hit small businesses particularly hard.

According to the National Federation of Independent Businesses,

“Small businesses play a critical role in our nation’s economy, and they are being rightfully recognized as Small Business Week continues into its fourth day today. But the onslaught of new federal regulations, one of the biggest obstacles to our nation’s biggest job creators, shows no sign of letting up.

“Small businesses pay disproportionately to comply with federal regulations…[The] average cost borne by small businesses is $10,585 per employee – 36 percent more than the compliance cost for larger firms. It shows environmental regulations are especially burdensome on small firms, costing a whopping 364 percent more for small firms than large ones.

“More small businesses say government regulations are the top problem facing their business. … 20 percent of small-business owners said “government regulations and red tape” was the single most important problem facing their business last month. That issue received the greatest response, ahead of poor sales and taxes.

“While small-business owners understand the necessity for some government regulation to ensure clean and available natural resources and safety, the flow of costly new regulations being proposed today is excessive. According to the Office of Information and Regulatory Affairs there are over 4,000 new federal regulations in the pipeline. Pending major regulations – those costing the economy $100 million or more – have increased 60 percent since 2005.

“More small-business owners are calling for a more sensible regulatory process. This includes more feedback from small businesses built into the regulatory process and government enforcement that aides compliance rather than punishing with fines…

“One of the most immediate and impactful actions that the Administration could take to help small business would be to implement sensible reforms to the regulatory process. That could give instant relief to small businesses uncertain about the looming wave of federal regulations and the punitive enforcement that is sure to follow.”

In response to pleas from small businesses, the bipartisan Regulatory Flexibility Act of 2013 has been progressing through Congress. Although a law had been passed in 1980 providing for common-sense flexibility, it has, according to many, been frequently ignored.

The 2013 amendment to that law would require that the 1980 measure be followed more closely. It mandates federal bureacracies to consider all regulatory effects and side effects, and requires federal agencies to set up small business review panels.

While the issue of Obamacare’s regulatory impact is frequently debated, the current and potential impact of the Environmental Protection Agency’s water regulations have not received quite the same level of attention in the national press, despite its extraordinary potential impact on property rights.

Some have maintained that the EPA is conducting a “war on the states” due to its regulatory overreach in water regulation.

A 2011 minority report by the United States Senate Committee on Environment and Public Works on the EPA’s water regulations notes that “These rules carry with them significant unfunded mandates that will cost state and local governments tens, if not hundreds, of billions of dollars. Importantly, these new rules are not the outcome of legislation or rigorous scientific findings, but a direct result of a number of lawsuits with environmentalists. The agreements to regulate often did not include any meaningful opportunity for input from state and local entities.”

According to the Capital Research Center,

“Congress intended the Environ¬mental Protection Agency to work closely with state and local officials-those nearest to the people. But since 2009, the Environ-mental Protection Agency has waged war on the states. In an end-run around the Constitution, the EPA has collaborated with environmentalist groups such as the Sierra Club and the Natural Resources Defense Council to implement policies that have little to do with protecting the environment….

“Under both the Clean Air Act and Clean Water Act, the EPA has the authority to ‘disapprove’a state’s strategy to meet na¬tional environmental goals. A regulatory disapproval is no small matter. State offi¬cials spend countless hours and tax dollars crafting implementation plans to comply with the Clean Water Act and the Clean Air Act. The EPA effectively throws this work out the window when it issues a regulatory disapproval.

“Since President Obama took office, the number of regulatory disapprovals has skyrocketed. The EPA issued 44 disapprov¬als during President Clinton’s second term, 42 during President George W. Bush’s first term, and 12 during Bush’s second term. But during President Obama’s first term, the EPA issued an unprecedented 95 disap¬provals.

“Under the Clean Water Act, the EPA has authority to regulate “navigable waters” of the United States. Although it would seem simple to define “navigable waters”-and thereby define the limits of the EPA’s power-in practice it has proven conten-tious. Indeed, the Supreme Court has twice checked the federal government’s interpre¬tation as being too broad, in 2001 and 2006 …

“In 2011, the EPA and the U.S. Army Corps of Engineers, which co-administers a sec¬tion of the Clean Water Act, sought com¬ment on a new interpretation of “navigable waters” that would reflect the Supreme Court’s decision inRapanos limiting the federal government’s definition of its own powers. Remarkably, given that the new interpretation should have bowed to the Su¬preme Court by restricting federal powers, the EPA went in exactly the opposite direc¬tion, significantly expanding the agency’s authority.

“The EPA, along with the Corps, simply refused to acknowledge that the Supreme Court had narrowed its authority. Indeed, they admitted that they were expanding that authority, “that under this proposed guidance the number of waters identified as protected by the Clean Water Act will increase compared to current practice.

“That’s an understatement: In practice, the 2011 interpretation would extend federal jurisdiction to virtually every drop of mois¬ture in America.

“The key to the EPA’s expanded reach is an aggregate “watershed” analysis that will de¬termine whether isolated waters have a “sig¬nificant nexus” to navigable waters and are therefore subject to federal jurisdiction. The test is so amorphous that every ditch, vernal pond, mudflat, sand flat, and slough could easily fall under the EPA’s jurisdiction. The agency’s interpretation is so expansive that it expressly refuses to exclude swimming pools and ornamental ponds, saying that these water features are only “generally exempt” from federal regulations…”
EPA Expands its Reach Through Definitions

According to 40 CFR 230.3(s) The term “waters of the United States” means:
1. 1. “All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2. 2. All interstate waters including interstate wetlands;
3. 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
(I) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii)(From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purposes by industries in interstate commerce;
(II) All impoundments of waters otherwise defined as waters of the United States under this definition;
1. 4. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
2. 5. The territorial sea;
3. 6. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.”


Republicans have called the EPA’s regulations a “massive power grab.”


The Obama Administration has been a study in contrasts between words and deeds on the topic of overregulation. It has arguably enacted more onerous and invasive regulations than any prior administration, and it has done so in manner openly defiant of traditional procedures.

However, it has clearly recognized the harmful effects on the economy, and it has sought to address its own practices. On January of 2011, the President issued Executive Order 13563, entitled “Improving Regulation and Regulatory Review,” ordering each agency:

“to take into account ‘among other things, and to the extent practicable, the costs of cumulative regulations.’ Executive Order 13563 emphasizes that some ‘sectors and industries face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping,’ and it directs agencies to promote “coordination, simplification, and harmonization.’ Executive Order 13563 also states that to the extent permitted by law, each agency shall ‘propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs.’

“Executive Order 13563 directs that regulations ‘shall be adopted through a process that involves public participation,’ including an ‘open exchange of information and perspectives.’ Public participation can and should be used to evaluate the cumulative effects of regulations, for example through active engagement with affected stakeholders well before the issuance of notices of proposed rulemaking. The President’s Council on Jobs and Competitiveness has emphasized the need for a smart and efficient regulatory system and has drawn particular attention to the cumulative effects of regulation. Cumulative burdens can create special challenges for small businesses and startups.

“Consistent with Executive Order 13563, and to the extent permitted by law, agencies should take active steps to take account of the cumulative effects of new and existing rules and to identify opportunities to harmonize and streamline multiple rules. The goals of this effort should be to simplify requirements on the public and private sectors; to ensure against unjustified, redundant, or excessive requirements; and ultimately to increase the net benefits of regulations. …

“Where appropriate and feasible, agencies should consider cumulative effects and opportunities for regulatory harmonization as part of their analysis of particular rules, and should carefully assess the appropriate content and timing of rules in light of those effects and opportunities. Consideration of cumulative effects and of opportunities to reduce burdens and to increase net benefits should be part of the assessment of costs and benefits, consistent with the requirement of Executive Order 13563 that, to the extent permitted by law, agencies must ‘select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits.” Agencies should avoid unintentional burdens that could result from an exclusive focus on the most recent regulatory activities. As noted, the cumulative effects on small businesses and start-ups deserve particular attention.”

In response to the heavy imposition of significant new regulations from the Executive Branch over the past 4 ½ years, H.R. 367, the “Regulations From the Executive Branch in Need of Scrutiny Act of 2013” has been introduced.

According to the official summary of the bill,

“H.R. 367 alters the treatment of major regulations[1] under the Congressional Review Act, while preserving the existing congressional disapproval process under the Act for non-major rules. Specifically, H.R. 367 requires Congress to pass and the President to sign a joint resolution of approval before a new major regulation issued by a federal agency may take effect. For non-major rules, H.R. 367 continues the current process of allowing the rule to take effect unless Congress passes and the President signs a resolution of disapproval.

“For all new regulations-both major and non-major-the promulgating agency must submit to Congress and the Comptroller General a report generally containing the regulation, its classification as major or non-major, other related regulatory actions and their individual and aggregate economic impact, and the proposed effective date of the rule. Copies of the report must be provided to all congressional committees of jurisdiction. On the same day, the promulgating agency also must provide other relevant material, including a cost-benefit analysis of the rule. For major rules, the Comptroller General must, within 15 days of receiving the initial report, provide to the congressional committees of jurisdiction a report assessing the agency’s compliance with procedural steps required by H.R. 367 and an assessment of whether the major rule imposes any new limits or mandates on private-sector activity.

“For major regulations, H.R. 367 establishes specific time constraints within which a joint resolution of approval must be introduced, considered by the relevant committees of jurisdiction, and brought before the full House and Senate for a vote. Generally, H.R. 367 prevents major regulations from taking effect unless Congress passes and the President signs a joint resolution of approval within 70 legislative days of the initial report received by Congress. H.R. 367 limits the permissible contents in a joint resolution of approval for a major regulation.

“H.R. 367 provides a presidential exception, allowing a major rule to take effect for a 90-day period if the President issues an executive order saying the rule is needed because of an imminent threat to health or safety; to enforce a criminal law; for national security; or for international trade. The President must provide written notice to Congress if he uses the exception.

“When a non-major rule is promulgated, H.R. 367 provides that each congressional body has 60 legislative days to introduce a joint resolution of disapproval. H.R. 367 specifies the permissible contents of the joint resolution of disapproval for a non-major regulation. Non-major rules take effect after the report is submitted to Congress, unless a joint resolution of disapproval is passed by each house and signed by the President.”

The President has vowed to veto the matter if it passes Congress.

The very concept of participatory government, the foundation of the American Republic, is threatened by the number of new regulations, the scope of activities they cover, and the manner in which they are enacted.


Concerns over inadequate educational accomplishments led to the bipartisan creation of the Common Core educational program. But the fears of parents and others that Common Core serves as an excuse for Washington to politicize the American public school system have been heightened by recent disclosures that related textual material introduced partisan statements into English lessons. Further objections have been raised about what some believe are bizarre common core assignments, including one report from Arkansas that sixth-graders were tasked to revise the Bill of Rights by removing two Amendments and adding two new ones.

Education Secretary Arne Duncan added fuel to the fire when he described those expressing their dismay as “White suburban mothers.”

How did the Common Core effort begin?

The creation of national standards had been a topic of discussion for many years. Dismay about the failure of U.S. public schools to produce students adequately prepared for college or the workforce prompted discussions on how to resolve the issue.

The Common Core approach to this problem arguably dates back to November of 2007, according to Education Week,
when state education leaders at a Council of Chief State School Officers policy meeting agreed on the need for common academic standards. The following December (2008) a report urging states to create a common set of internationally benchmarked standards was issued. The concept received considerable financial support from President Obama’s stimulus program, along with technical and logistical support from the U.S. Education Department. The assistance was part of the federal “Race To The Top” program.

In 2009, Governors and school chiefs subsequently met in Chicago where a call to support the concept of shared standards was issued. Writing panels were issued shortly thereafter, and public comment was invited. A final draft was released in June of 2010.

The program, a product of cooperation between the Council of Chief State Schools Officers and the National Governors Association, applies to the annual standards in math and English that students from kindergarten through high school should meet.

(US Dept. of Education)

On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act of 2009 (ARRA) … legislation … The ARRA lays the foundation for education reform by supporting investments in… strategies that are most likely to lead to improved results for students, long-term gains in school and school system capacity, and increased productivity and effectiveness.

The ARRA provides $4.35 billion for the Race to the Top Fund, a competitive grant program designed to encourage and reward States that are creating the conditions for education innovation and reform; achieving significant improvement in student outcomes, including making substantial gains in student achievement, closing achievement gaps, improving high school graduation rates, and ensuring student preparation for success in college and careers; and implementing ambitious plans in four core education reform areas:

Adopting standards and assessments that prepare students to succeed in college and the workplace and to compete in the global economy;
Building data systems that measure student growth and success, and inform teachers and principals about how they can improve instruction;
Recruiting, developing, rewarding, and retaining effective teachers and principals, especially where they are needed most; and
Turning around [the] lowest-achieving schools.

Race to the Top will reward States that have demonstrated success in raising student achievement and have the best plans to accelerate their reforms in the future. These States will offer models for others to follow and will spread the best reform ideas across their States, and across the country.

What is Common Core?
The National Governors Association/Council of Chief State School describe common core as follows:
What is the Common Core State Standards Initiative?

The Common Core State Standards Initiative is a state-led effort that established a single set of clear educational standards for kindergarten through 12th grade in English language arts and mathematics that states voluntarily adopt. The standards are designed to ensure that students graduating from high school are prepared to enter credit bearing entry courses in two or four year college programs or enter the workforce. The standards are clear and concise to ensure that parents, teachers, and students have a clear understanding of the expectations in reading, writing, speaking and listening, language and mathematics in school.

Why is the Common Core State Standards Initiative important?
High standards that are consistent across states provide teachers, parents, and students with a set of clear expectations that are aligned to the expectations in college and careers. The standards promote equity by ensuring all students, no matter where they live, are well prepared with the skills and knowledge necessary to collaborate and compete with their peers in the United States and abroad.. Unlike previous state standards, which were unique to every state in the country, the Common Core State Standards enable collaboration between states on a range of tools and policies, including:
the development of textbooks, digital media, and other teaching materials aligned to the standards;
and the development and implementation of common comprehensive assessment systems to measure student performance annually that will replace existing state testing systems; and
changes needed to help support educators and schools in teaching to the new standards.
What guidance do the Common Core State Standards provide to teachers?
The Common Core State Standards are a clear set of shared goals and expectations for the knowledge and skills students need in English language arts and mathematics at each grade level to ultimately be prepared to graduate college and career ready. The standards establish what students need to learn, but they do not dictate how teachers should teach. Teachers will continue to devise lesson plans and tailor instruction to the individual needs of the students in their classrooms.
How do the Common Core State Standards compare to previous state standards?
The Common Core State Standards were written by building on the best and highest state standards in existence in the U.S., examining the expectations of other high performing countries around the world, and careful study of the research and literature available on what students need to know and be able to do to be successful in college and careers. No state in the country was asked to lower their expectations for their students in adopting the Common Core. The standards are evidence-based, aligned with college and work expectations, include rigorous content and skills, and are informed by other top performing countries. They were developed in consultation with teachers and parents from across the country so they are also realistic and practical for the classroom.
The concern that these common standards could lead to a nationalization of education is denied by the NGA/CCSSO group. They insist that this will remain a state-led effort.
Currently, all states other than Alaska, Nebraska, Texas, and Virginia have adopted the curriculum. Minnesota has adopted only a portion of it.


U.S. Education Secretary Arne Duncan is one of Common Core’s most enthusiastic backers. In June, he addressed the need for the program:

“You may have heard President Obama say that America used to be number one in the world in college completion just one generation ago. Sadly, today, we have dropped to number 12 among young adults. That’s reality and that’s unacceptable.

“We’re not going to pave a path to the middle class with the cheapest labor. We’re not going to reverse the polarization of wealth in this country through unskilled jobs. The only way that we can promise all of our young people a genuine opportunity is through a world-class education…
“The problem is a lot of children, in a lot of places in America, have not been getting a world-class education. But rather than recognize that, for far too long, our school systems lied to kids, to families, and to communities. They said the kids were all right—that they were on track to being successful—when in reality they were not even close…
“What made those soothing lies possible were low standards for learning. Low standards are the equivalent of setting up for a track-and-field event with hurdles only one foot tall. That’s what happened in education in a lot of places, and everyone came out looking good—educators, administrators and especially politicians.
“The truth—the brutal truth—was that we had thousands of schools where as few as 10 percent of students were reading or doing math at grade level, and where less than half were graduating…
“Today a fourth grade teacher in New Mexico can develop a lesson plan at night and, the very next day, a fourth grade teacher in New York can use it and share it with others if she wants to.
“Today, the child of a Marine officer, who is transferred from Camp Pendleton in California to Camp Lejeune in North Carolina, will be able to make that academic transition without a hitch, instead of having to start over in a widely different place academically…
“When these standards are fully implemented, a student who graduates from a high school in any one of these states—who is performing at standard—will be ready to attend and succeed in his or her state university without remedial education. Historically, in far too many communities, more than half of those who actually graduated from high school needed remedial help in college…
“When the Obama administration came into office in 2009, the Common Core standards were in development, and gaining momentum. We set out to support states and districts in changing the conditions that were limiting educational opportunity, and raising standards was a vital part of that.
“With governors and state leaders making major progress on standards, we gave them all the support we could, within the bounds of what’s appropriate for the limited federal role in education.
“Our big competitive reform fund, Race to the Top, awarded points—40 points out of 500—to states that were collaborating to create common college- and career-ready standards.
“It was voluntary—we didn’t mandate it—but we absolutely encouraged this state-led work because it is good for kids and good for the country…
“Did the points, and the dollars, matter to the states? Absolutely. But it’s not the only reason or even the most important reason why states adopted the Common Core. To be clear, total Race to the Top dollars were less than one percent of what we spent on K-12 education every single year.
“States signed on to the Common Core because it was the right thing to do. They knew that their children were being cheated and they refused to continue to be a part of it—and for that they deserve our deepest praise and gratitude. In fact, dozens of states that didn’t get a nickel of Race to the Top money are committed to those higher standards—and American education will be better because of it…
“The Common Core standards mark a sea-change in education. Not only do they set the bar high, they give teachers the space and opportunity to go deep, emphasizing problem-solving, analysis, and critical thinking, as well as creativity and teamwork. They give teachers room to innovate.
“And, all across the country, teachers have responded. Three out of four say the Common Core standards will help them teach better…”
The National Education Association (NEA) http:/ is a strong proponent. They note that:
“Examination of the education systems of high performing countries such as Singapore and New Zealand indicates that those countries have common standards or curriculum that articulate broad, high goals for students, provide adequate preparation and support to teachers, allow teachers to exercise professional judgment, and involve teachers in all aspects of the education enterprise including curriculum, standards, and assessments as well as instruction. “
“The Common Core State Standards Initiative has the potential to begin to move education in the U.S. along this path.
NEA supports the Common Core State Standards Initiative as a potential means of providing access to a complete and challenging education to all children. Currently, some states are not providing sufficient resources for students to meet standards and acquire a quality education.
The initiative is promising also because it will involve input from states and a wide range of stakeholders. Most importantly, the standards will be voluntary. NEA has consistently opposed mandatory national standards developed through a top down process. The Common Core Standards Initiative has the potential to encourage states to participate, but not be coercive or rigid.
The effort to construct the common core of standards so that it is a manageable list of broad goals rather than an exhaustive list of bits of learning is another aspect of the initiative that NEA applauds. This new notion of how standards should be articulated can allow for high goals while providing for instructional flexibility in reaching those goals.
The development of a bank of sample assessment items has the potential to provide states with flexibility and control while establishing concrete ways to determine student achievement.
The initiative has provided educators, parents, and a wide range of stakeholders and experts the opportunity to provide input.
Our current notion of content standards has been corrupted to be almost completely dominated by what can be tested rather than by the deep understandings and 21st century skills that students need. The initiative is attempting to bring the focus back to the components of a quality education…”
The view from state legislatures

The National Council of State Legislatures has endorsed the concept of common standards but remains concerns about the potential abuse of the program:

State legislators support the voluntary state standards initiatives so long as the initiatives remain voluntary, state-led and state-administered, and so long as the federal government does not overstep its role, and the U.S. Department of Education complies with its statutory authority and programs and does not condition the receipt of federal dollars on state participation in common standards efforts.
Past federal attempts to create national standards or a national test have proven partisan, divisive and unsuccessful. Federal legislation creating the U.S. Department of Education prohibits direct federal involvement in a national test. Similar language in NCLB prohibits federal involvement in standards, assessments and curricula. These protections against federal involvement in state issues should be adhered to and continued. It is the position of the National Conference of State Legislatures that there is no authorized role for federal mandates regarding national academic standards or a unified national test.
State legislators support the need to improve elementary and secondary education so that all students have access to a challenging and rewarding public education. Students in our schools need rigorous state standards that are anchored in real world demands students will face after high school, that are aligned to K-12 curriculum, assessments, high school graduation requirements, college placement standards and other related policy tools and practices. This can be most readily accomplished through individual state refinement of standards or the voluntary participation of states in joint efforts like the Common Core Initiative led by the National Governors Association and the Council of Chief State School Officers. The Common Core and other consortiums have worked diligently to develop a set of standards in Math and English that will enhance the standards set by many states. It is critical that such standards not represent a step backward for some states.
Legislators applaud the efforts and results thus far of these state-led consortia.
The National Council of State Legislatures while endorsing the Common Core concept, has significant concerns:
“…federal actions have contributed to our concerns that this effort may have as its ultimate result a nationalized K-12 system that will not remain voluntary and may have already been compromised by actions of both the state-led consortia and the federal government. Specifically:
The federal government required a state commitment to adopt the common standards as an eligibility criterion for federal Race to the Top funds even before the common standards were fully developed, released or endorsed.
The federal government has committed $350 million to develop the common assessments that match up to the common standards and the Common Core Initiative has acknowledged the need for on-going public support for its activities.
The current administration’s blueprint for reauthorization of ESEA suggested that Title I funds for disadvantaged children be contingent upon each states’ acceptance of a set of voluntary common standards.
The federal government has a history of co-opting successful state policy initiatives by effectively making them mandatory through the ‘condition of grant’ process.
The preceding actions raise concerns that this voluntary, state-led effort will prove too attractive for federal officials to ignore. Therefore, state legislators assert that the U.S. Department of Education should refrain from the actions described above that are in conflict with its statutory authority, and specifically that it does not condition the receipt of federal dollars on state participation in common standard efforts.


Senators Chuck Grassley, Mike Lee, Tom Coburn, James Inhofe, Deb Fischer, Rand Paul, Pat Roberts, Jeff Sessions, and Ted Cruz have expressed their concern that the U.S. Department of Education has made adoption of Common Core standards requirements for states obtaining waivers and funds. They want to restrict this from occurring.

In a statement earlier this year, Senator Grassley stated that:
“What’s happening violates the structure of our education system, where academic content decisions are made at the state level giving parents a direct line of accountability to those making decisions. The federal government should not be allowed to coerce state education decision makers…
“The first principle of education, and therefore of education policymaking, is that parents are the primary educators of their children. And because responsibility for children’s education lies primarily with parents, to the greatest extent possible so should decision-making authority over Pre-K to secondary education. While the Common Core Standard Initiative was initially promoted as an effort to move in this direction, it has become polluted with federal guidelines and mandates that interfere with the ability of parents, teachers and principals to deliver the education our children deserve.”
A joint study by the Pioneer Institute, the American Principles Project, the Pacific Research Institute, and Civitas warns:
“By signing on to national standards and the assessments that will accompany them, participating states have ceded their autonomy to design and oversee the implementation of their own standards and tests. The implications of ceding this autonomy are varied. Not only do some states risk sacrificing high quality standards for national standards that may be less rigorous, all states are sacrificing their ability to inform what students learn. Moreover, the act of adopting national standards has and will continue to disrupt legal and other processes upon which states rely to ensure the adequate and equitable delivery of educational materials and resources. Finally and, perhaps, most distressing, the predicted cost to states of implementing the Common Core is in the billions of dollars, a number that only stands to grow if implementation ramps up.”
In his 2011 testimony before the House of Representatives Education and Workforce Committee’s subcommittee on Early Childhood, Jay P. Greene, a 21st Century Professor of Education Reform, stated:
I believe this centralized approach is mistaken. The best way to produce high academic standards and better student learning is by decentralizing the process of determining standards, curriculum, and assessments. When we have choice and competition among different sets of standards, curricula, and assessments, they tend to improve in quality to better suit student needs and result in better outcomes.
One thing that should be understood with respect to nationalized approaches is that there is no evidence that countries that have nationalized systems get better results. Advocates for nationalization will point to other countries, such as Singapore, with higher achievement that also have a nationalized system as proof that we should do the same. But they fail to acknowledge that many countries that do worse than the United States on international tests also have nationalized systems. Conversely, many of the countries that do better than the United States, such as Canada, Australia, and Belgium, have decentralized systems. The research shows little or no relationship between nationalized approaches and student achievement.
In addition, there is no evidence that the Common Core standards are rigorous or will help produce better results. The only evidence in support of Common Core consists of projects funded directly or indirectly by the Gates Foundation in which panels of selected experts are asked to offer their opinion on the quality of Common Core standards. Not surprisingly, panels organized by the backers of Common Core believe that Common Core is good. This is not research; this is just advocates of Common Core re-stating their support. The few independent evaluations of Common Core that exist suggest that its standards are mediocre and represent little change from what most states already have.
If that’s true, what’s the harm in pursuing a nationalized approach? First, nationalized approaches lack a mechanism for continual improvement. Given how difficult it is to agree upon them, once we set national standards, curriculum, and assessments, they are nearly impossible to change. If we discover a mistake or wish to try a new and possibly better approach, we can’t switch. We are stuck with whatever national choices we make for a very long time. And if we make a mistake we will impose it on the entire country.
Second, to the extent that there will be change in a nationalized system of standards, curriculum, and assessments, it will be directed by the most powerful organized interests in education, and probably not by reformers. Making standards more rigorous and setting cut scores on assessments higher would show the education system in a more negative light, so teachers unions and other organized interests in education may attempt to steer the nationalized system in a less rigorous direction. In general, it is unwise to build a national church if you are a minority religion. Reformers should recognize that they are the political minority and should avoid building a nationalized system that the unions and other forces of the status quo will likely control.
Third, we are a large and diverse country. Teaching everyone the same material at the same time and in the same way may work in small homogenous countries, like Finland, but it cannot work in the United States. There is no single best way that would be appropriate for all students in all circumstances.
I do not mean to suggest that math is different in one place than it is in another, but the way in which we can best approach math, the age and sequence in which we introduce material, may vary significantly. As a concrete example, California currently introduces algebra in 8th grade but Common Core calls for this to be done in 9th grade. We don’t really know the best way for all students and it is dangerous to decide this at the national level and impose it on everyone.
In a published article, the Heartland Institute notes that:
“For four and a half decades, the federal role in education has been growing. Costly in terms of taxpayer dollars spent and local control education lost, this expanding federal control has failed to outcomes for America’s children. National standards will further expand Washington’s role—and will remove parents from decisions about content taught in our children’s schools. Yet the Obama Administration is intent on nationalizing the content taught in every public school across America. Without Congressional approval, the Administration has used a combination of carrots and sticks to spur states to sign on to the Common Core standards initiative. Common Core includes costly and questionable national standards for English and math, and federally funded national assessments have been crafted to align with the standards. State leaders who believe in limited government and liberty should resist the imposition of national standards and tests in their states.”


The poor performance of many public schools in the United States is a serious issue, and the establishment of standards is a valid approach. The Common Core initiative was a bipartisan approach to accomplishing this.
However, there is little evidence that doing this on a national level will be effective. Further, concerns about the creeping politicization of our educational system are valid.