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CEI's 2015 Unconstitutionality Index: 27 Regulations for Every Law

There’s this idea floating around about America’s do-nothing Congress, that laws aren’t being passed.

The Los Angeles Times called Congress “ineffective,” in 2013 since it passed so few laws. By such standards it was a tad more “effective” at year-end 2014, with 129 laws compared to 2013’s 72.

Such tallies always include things ranging from naming post offices after politicians and dignitaries. to the likes of Obamacare. 

Actually, the real story is that there’s a heck of a lot of lawmaking going on behind the scenes, but elected representatives aren’t involved. Bureaucrats are doing it, and you must heed them.

The president, via unilateral executive actions—the now famous “pen and phone”—is making law, too, no matter what the Constitution says.  

The new 114th Congress kicks off this week, so let’s look at where we are. The new GOP majority is readying Keystone, jobs bills, regulatory liberalization and tax reform.

It’s becoming clear, though, that Obama’s emphasis will remain his own executive actions, not the presumed trade deal and tax reform that were acknowledged mutual interests.

Between now and the January 20 State of the Union Address, the president will be out on a nationwide PR swing touting other kinds of programs like housing and higher education assistance that involve unilateral executive actions—and taxing and spending.

The November election’s message to Obama to back off notwithstanding, the president knows he can count on a friendly media saying Congress is blocking his “reforms” rather than challenge his not meeting Congress in the middle on their ideas.  

Note that the defining feature of the 114th Congress’ agenda is not so much things they will do, but reforms to undo. The congressional emphasis, really, is reforming government excess, to reduce government to its proper size.

This contrasts markedly with Obama’s vision and, say, Rolling Stone’s rallying of millennials to government-guaranteed work for everybody and collective ownership of resources.  

It’s actually supposed to be hard to pass laws; government isn’t always our friend or acting in the general interest. Usually, to turn the famous phrase on its head, "There ought not be a law," because most aspects of our lives and communities are not public policy issues (let alone federal policy issues) and should not be turned into such.

In any event, Congress passed and the president signed into law 129 Public Laws in 2014, as I’ve derived from the Government Publishing Office’s archive of Public Laws. There had been 72 laws in 2013. So 201 is the total for the 113th Congress.

We know the LA Times, Rolling Stone, New York Times and Washington Post, all wish there were more laws.

Wish granted.   

Congress may have passed "only" 129 Public Laws this year before Obama’s Hawaii trip, but federal agencies are always there to take up slack.

And they did; agencies issued 3,541 rules and regulations in 2014, by my preliminary count.

That's 27 rules and regulations for every law.

That’s not even counting the pen and phone and other regulatory dark matter that are rising in prominence like bulletins, guidance documents, blog posts and press conferences that amount to “law” in their own right.

There's no pattern to any of this, but below one may observe the Unconstitutionality Index going back to 2003 below (and earlier in the Ten Thousand Commandments roundup (in Historical Tables, Part J).

The Unconstitutionality Index
Public Laws vs. Agency Rulemakings

Year

Bills

Final Rules Issued

Multiple

2003

198

4,148

21

2004

299

4,101

14

2005

161

3,943

24

2006

321

3,718

12

2007

188

3,595

19

2008

285

3,830

13

2009

125

3,503

28

2010

217

3,573

16

2011

81

3,807

47

2012

127

3,708

29

2013

72

3,659

51

2014

129

3,541

27

The erosion of the Constitution's separation of powers doctrine, and the very notion of a balance of powers besides, means that regulators and bureaucrats now make most laws. Obama’s multiple, it may be seen, tends to be higher than Bush.

The “Unconstitutionality Index” symbolizes the fruits of over-delegation of congressional power by Congress. Over-delegation has emboldened the executive branch such that, if there are limits it recognizes, one cannot fathom what they might be.

Many point to Obama executive orders as the tool of choice for acting without waiting for Congress, but his presidential memoranda are where the real action is.

New Year’s Day just passed, with countless “What’s In, What’s Out” lists. Clearly, Congress is just oh-so-1789. Can the 114th Congress take back its rightful, constitutional power, and become the cool kids in 2015?  

Will let you know in 2016.