The 2016 Unconstitutionality Index: 39 Federal Rules for Every Law Congress Passes

The New Year brought news of yet more executive action by President Obama, most prominently this time on tweaking the Second Amendment and access to guns.

The President’s January 1 radio address outlined the plan. As the first order of business upon his return from Hawaii, the President and Attorney General Loretta Lynch will initiate a three-month review of options.

The emboldened president, who even maintains a taunting website devoted to the refrain “We Can’t Wait,” clearly loves unilateral executive actions. He has often invoked his “pen and phone” by which he rather than Congress writes law.

At an earlier than usual January 12 State of the Union Address, observers anticipate the president pushing such items as nutrition labeling, e-cigaratte regulation, controls on investment advisors, more energy efficiency controls and closing Guantanamo.

But the “executive action agenda” will be more ambitious than that. While in his last year he’s not expected to do another Obamacare, one must expect the president to aggressively push an interventionist middle-class economics and income inequality agenda in support of the Democratic presidential nominee as the year proceeds.

There’s this notion floating around about political gridlock, that a do-nothing Congress and the President can’t work together on anything.

But if the past year has established anything, it is that the Republican Party as currently constituted accommodates President Obama, and isn't going to stand in the way of executive actions via the constitutional means at its disposal—that of withholding the purse.

That lack of gridlock has made for the interesting primary season as the party unconvincingly acts bewildered at the non-appeal of its establishment candidates (at least according to the polls).

Indeed, the dozens or hundreds of federal agencies—depending upon who’s counting—issue regulations that vastly outnumber each year’s laws legitimately passed by Congress.

In 2015, Congress passed "only" 87 Public Laws before Obama’s Hawaii trip, as I’ve derived from the Government Publishing Office’s archive of Public Laws.

Such annual tallies include things ranging from naming post offices after politicians and dignitaries to the likes of Obamacare. In 2015, things started with the Terrorism Risk Insurance Program Reauthorization on Jaunary 12, and ended with the Surface Transportation Extension Act on November 20.

Federal agencies and bureaus, however, were far more busy than Congress: agencies issued 3,408 rules and regulations in 2015, by my preliminary count. The National Archives will prepare a final tally within a couple months.

In terms of just raw flow, that's 39 rules and regulations for every law. I like to call that multiple “The Unconstitutionality Index.” The nearby chart depicts it going back to 2003 (you can go back earlier in the Ten Thousand Commandments roundup (in Historical Tables, Part J).  

There's not necessarily a set pattern to any of this; there had been 129 laws in 2014, and a multiple of 27. And naturally a given year’s rules aren’t likely to be tied to the laws just enacted that year.

Yet, one may observe that the multiple has tended to be higher during Obama Administration. Bush’s last six years averaged 17, while Obama’s just-ended six have averaged 35.

The Unconstitutionality Index
Public Laws vs. Agency Rulemakings

There’s a heck of a lot of lawmaking going on even beyond what the Index implies in its depiction of law being made without the involvement of elected representatives. The normal notice-and-comment formalities of the already inadequate Administrative Procedure Act get downplayed further as “regulatory dark matter” like bulletins, guidance documents, notices and memoranda rise in prominence in modern America.

Many such proclamations are buried among over 20,000 “notices” published in the Federal Register every year, but others do not even get published there as regulators and bureaucrats unleash pens and phones of their own.

It’s 2016, the New Year. Congress is just oh-so-1789.