With one day to go in 2015, the Federal Register tops off at 81,611 pages. That’s higher than last year at 77,687 pages and higher than it’s ever been at 81,405 in 2010.
The presidential “pen and phone” have been hyperactive. In fact, six of the seven record-high Federal Register annual page counts are attributable to President Barack Obama, as the chart nearby shows.
Among this year’s pages so far are 3,378 final rules and regulations. Of those final rules, 545 are recognized as having effects on small businesses. Some rules this year have been especially hefty, such as the Environmental Protection Agency’s Clean Power Plan and its Waters of the United States rule, and the Federal Communications Commission’s net neutrality order.
Another 2,334 proposed rules were issued in 2015 and are under various levels of consideration.
What can Congress do about it? Congress has ample opportunity to consider resolutions of disapproval of controversial rules under the Congressional Review Act (here’s an inventory of RODs since 1996) but rarely does so. There have been only 109 introduced in the 20 years since that Act, while tens of thousands of regulations have taken effect.
But now, there’s even more to worry about than actual rules. Regulation no longer stops with the rules we can readily count in the Federal Register. Agency guidance documents and numerous other kinds of notices, bulletins, circulars, memoranda and decrees make up “Regulatory Dark Matter.”
There are several hundred guidances in effect acknowledged to be “significant.” And the Federal Register this year contains 23,901 “notices.” Most are insignificant, but lots of stuff gets buried there, and still more doesn’t even appear in the Federal Register at all. No one even knows where to find all the agency “guidance” that’s out there. One can’t easily tally the off-the-books regulation, but I’ve attempted it in “Mapping Washington’s Lawlessness: A Preliminary Inventory of ‘Regulatory Dark Matter’.”
This problem cannot be ignored. Regulatory reform must address what happens outside the official, democratic lawmaking process.
And then there are executive orders and memoranda. He issued 29 executive orders in 2015. But his Obama’s primary pen and phone medium is presidential memoranda. (See: Despotism-Lite? The Obama Administration's Rule By Memo.) The president has issued 31 executive memoranda so far in 2015, some with substantial economic effect on areas like student loans and leave policy and minimum wages for contractors.
So, what more can Congress do about it? Repeal the bureaucracy’s enabling statutes, require congressional approval for big rules, and enforce maximum requirements set forth in the Administrative Procedure Act.
The House of Representatives passed the REINS Act (Regulations from the Executive In Need of Scrutiny) to do that, but the Senate seems disinclined to pass it and force President Obama’s promised veto. If Congress isn’t willing to force Obama to explain why unelected should make laws, it must be because the Republican Congress isn’t willing to end over-delegation. We’ll know for sure if a Republican wins the 2016 election and REINS-like legislation disappears altogether.
Meanwhile, Congress should require strict adherence to Administrative Procedure Act formalities for regulatory dark matter as a priority of the 114th Congress in 2016. The public needs, at minimum, an opportunity to read, comment and object.
I compile a weekly roundup the year's proposed and final rules, executive orders, memoranda and other information on a daily basis here, on a Ten Thousand Commandments site, and will issue a final roundup for the year 2015 later this week.
Note that the final Federal Register compilation won’t be made official by the National Archives until early in the New Year. Also note that the published version today contains 81,736 pages, but I net out blank and skipped pages in my daily roundup to arrive at the 81,611 figure.
Update: The final count for 2015 was 82,036 pages in the Federal Register, more than 600 pages longer than the previous 2010 record.