Don’t let them fool you — Republicans love regulation, too

One of the most reflexively-accepted principles of conventional political wisdom is that the American right loathes regulation and that conservatives will do everything in their power to get rid of as much government as possible. Ever since the Reagan Presidency, Republicans have developed this anti-government narrative, claiming that government treads on personal freedom, destroys jobs, and hampers economic growth.

Nothing, however, is further from the truth. The news out of Washington over the past several days exemplifies Republicans love regulation too. The claim that they don’t is simply a smoke-screen that allows them to advance their own substantive political agenda.

{mosads}Take yesterday’s repeal of key elements of the Dodd-Frank bank regulations established in the wake of the 2008 economic meltdown. The new law doesn’t repeal all of Dodd-Frank, but it does remove thousands of banks from complying with a number of important requirements.

Upon passage in the House, Speaker Paul Ryan (W-Wisc.) celebrated the vote as an example of Congress “freeing our economy from overregulation.” This, in other words, was American conventional wisdom about the Republican Party playing out over bank regulation.

But contrast the Dodd-Frank vote with another development this week. On Tuesday, President Trump’s Department of Health and Human Services released a proposed new rule that limits how health centers that receive Title X funding can operate. Title X is a federal program dating back to 1970 that funds health centers to provide family planning services, such as contraception and reproductive health care, to low-income individuals.

Because of the subject area, this provision has been the source of political controversy for decades. In the 1980s, President Reagan first established what is called “the gag rule.” Under this rule, health providers who received Title X money could not provide, refer for, or counsel about abortion. Because of legal challenges, this regulation never went into effect and President Clinton quickly rescinded it when he took office.

Under President Trump, the gag rule is back. The proposed rule is slightly less onerous than President Reagan’s, as it will not prohibit counseling about abortion at Title X health centers, but it will prevent providing abortions and referring to abortion providers. It will also allow Title X recipients to give incomplete information about abortion and contraceptive methods if asked by patients.

Of course, in response, conservatives praised President Trump as delivering on a central plank of his campaign promise to defund Planned Parenthood and promote a culture of life. But in doing so, conservatives completely ignored their commonly-presumed position on regulation.

After all, what is this new rule if not a regulation on business, in this case, the business of practicing medicine? Doctors, nurses, and health clinic administrators at a wide range of health centers, not just Planned Parenthoods, will now have to change the way they practice their trade because of intrusive business regulation. Instead of being able to use their best judgment as to how to care for the patient in front of them, they will have to follow government regulations that will take precedence over their expertise.

Does that last sentence sound familiar? It should, because that’s the rationale the Republican Party offers when it attacks regulation it doesn’t like. But, when it’s proposing regulation that suits its substantive goals, that rationale disappears into the ether.

To be sure, this isn’t just about one special case of abortion specifically or women’s reproductive autonomy more generally. There’s a whole host of areas where American conservatives love regulation.

Consider just one area that has received Trump’s attention: marijuana laws. With Trump’s approval, Jeff Sessions has rescinded Obama-era guidance that paved the way for states to legalize marijuana, instead telling them that the DOJ will enforce federal rules over state preferences.

This action contravenes virtually every element of the traditional conservative deregulatory narrative. It suggests the “nanny state” is a better decision-maker than the individual while removing rights from the states and impeding the growth of a new money-making venture.

What’s obvious from this example is that, like Democrats, Republicans love government regulation, but only when it suits the party’s substantive goals. This week demonstrated in great relief what those goals are: The Republicans chose to remove regulations that protect Americans from the types of risky ventures that led to the Great Recession, despite the fact that Wall Street is already making record profits, while controlling how the medical profession treats women’s reproductive health needs.

When the smokescreen of the claim that Republicans don’t like regulation is removed, the stark substantive difference in party preferences becomes much clearer.

David S. Cohen and Alex Geisinger are professors of law at the Drexel University Thomas R. Kline School of Law.