With Congress on its summer recess, it’s a great time to think about how many laws it passes versus how many rules and regulations are issued by the hundreds of federal agencies they (are supposed to) oversee. .
There’s been a lot of talk in Donald Trump’s new administration about cutting regulations, speeding up building permits, revamping executive power, and more.
There was also talk of the ‘administrative state’ (some said ‘deep state’) and the reality of agency bureaucrats who persist in slowing down Trump’s reforms (with media sympathy: only 7% about are Republicans).
But these things matter no matter who is president, because increasingly, since the federal government is so ubiquitous, it can regulate private activity without waiting for Congress to pass a law, and without even going through the normal process of development of notice and comment rules that agencies “must” adhere to. This threatens both conservative and liberal values.
The bottom line is that in America today, most binding rules come from (unelected) agencies rather than elected legislators.
Let’s look at the end of 2016 to begin with. Federal departments, agencies, and commissions issued 3,853 rules in 2016, while Congress passed and the president signed 214 bills, a ratio of 18 rules for each law.
The average has been 27 rules for each law over the past decade (see table opposite). Of course, the rules issued in a given year are generally not substantially related to the current year’s laws, since the agency’s output represents the continued implementation of previous legislation.
Looking back, there have been 88,899 federal rules and regulations since 1995 through December 2016, as the chart shows; but “only” 4,312 laws.
At the end of 2016, 2,419 other proposed rules were in play. Given the Trump administration’s moratorium, many of these were under review in 2017.
As the graph also shows, dozens or hundreds of rules each year are labeled as “major”, “of economic importance” or “significant”. There are differences between these defined in statute and executive orders, but the frequent characterization is at least $100 million in annual economic impact.
Notably, “significant” regulatory actions regularly exceed the number of duly enacted laws..
In the Trump era, things have slowed down considerably. While Trump agencies have issued 1,748 rules since Jan. 21 to date, many were date postponements and the like. Under Trump’s 2-to-1 executive order, “economically significant” regulatory actions and directives must be compensated.
If there is a desire in Washington to maintain a slower pace or even just balance things out, some of the measures in Congress, such as the bipartisan Regulatory Accountability Act (S. 951) to improve regulatory scrutiny should be adopted. It was introduced this year by Sen. Rob Portman (R-OH) and Heidi Heitkamp (D-ND).
For a more limited move, Trump’s one-in-two proposal would be a good proposal to enact into law. It just so happens that Rep. Mark Meadows (R-NC) introduced HR 2623 legislation which enshrines the in/out approach into law. This is the “Regulatory Cost Reduction and Establishment of Federal Regulatory Budget Act” of 2017.
This cannot be considered radical, since Sen. Mark Warner (D-VA) has proposed an in, out, and other nations have adopted such policies. Warner called its approach Regulatory PAY-GO. The fact is, this “Trump” idea has bipartisan legs, even in today’s heated Washington environment.
And Washington has to deal with the federal budget, approaching debt limit and federal spending priorities. The growing interconnections between tax and regulatory businesses should hopefully offer at least some opportunities for collaboration on the idea of making regulation more accountable to someone — even in a year like this. Washington is not just spending our money, it is also forcing the private sector to spend on its regulatory priorities.
Or is an accumulation of over 3,000 rules, plus unaccounted and undocumented regulatory dark matter, going to stay OK with policymakers even as the economy turns. We will see.