On this, the day after the election of Donald J. Trump as the 45th president (yes, he has already updated his Twitter profile), President Barack Obama’s 2016 Federal Register page count stands at a record-level 78,898.
The Federal Register, so emblematic of Washington excess, is where the hundreds of Washington bureaucracies post their proposed and final rules and regulations each day.
Obama will break his own all-time record of 81,405 pages even before December gets here. Of the ten highest-ever Federal Register page counts, the incumbent president will own seven of them.
Within those pages, several thousand rules get issued annually, no matter which party holds the Oval Office. Big government is bipartisan.
He’ll need to work with Congress to do anything close to the latter ambition (toned down some by an aide), especially since many crony types like regulations just the way they are, let alone progressives who like to rule above all else. But there are a number of things he can do on his own in the meantime.
That is to say, the “pen and phone” made famous by Obama can be used to advance liberty rather than curtail it (and, within the rule of law, no less)
A quick lesson can be learned from Ronald Reagan. Via executive order (E.O. 12291), he set up the still-existing procedure whereby regulations are reviewed by the White House, and in some cases (alas, too few then and now) receive cost-benefit analysis.
The process has been weakened in the decades since. But a fast reduction in Federal Register page counts and in number of rules is possible simply by having a president concerned about regulatory excess, who expects sanity.
In Reagan’s case, his 1981 version of the administrative pen and phone to restrain the regulatory state arguably made a big difference in regulatory volume, at least for a few years.
Federal rules dropped from the all-time high of 7,745 to as low as 4,589, while Federal Register pages that stood at 73,258 in 1980 hit a low of 44,812. (For details and charts, see ” Channeling Reagan by Executive Order: How the Next President Can Begin Rolling Back the Obama Regulation Rampage.”)
Now, executive actions cannot suffice and more permanent, legislatively instituted reforms are needed. President-elect Trump can easily collaborate with the new 115th Congress on these. Abusive and alarmist agencies themselves need to be legislatively targeted, and we need an advanced program of eliminating agencies and rolling back their powers, if legitimate in the first place, securing authority with the states and the people. That’s the forgotten principle of federalism.
The entire process and institution of the modern out-of-control “administrative state” has got to be reined in. There should be no costly or controversial rule allowed to be issued without Congress’ affirmation (examples go on but include recent bureaucratic forays such as the overtime rule, net neutrality and Environmental Protection Agency excesses like the Waters of the United States rule and the Clean Power Plan).
Unelected bureaucrats making sweeping rules governing (and wrecking) entire sectors of the economy needs to be a thing of the past. Conservatives seeking to rationalize delegation or who’ve made peace with it are not helpful to the cause of substantial reestablishment of constitutional bounds on the state. They are playing in a sandbox on the progressives’ administrative-state beach.
We can revive the separation of powers, and enshrine checks and balances that restrain. We need an executive, legislature, and judiciary, not today’s rock, paper, scissors. Special, new emphasis and care must be brought to bear on agencies’ back door rulemaking, whereby agencies use guidance, memoranda, bulletins, circulars and other regulatory dark matter to implement policy, as highlighted by Sen. Heidi Heitkamp (D-North Dakota) and James Lankford (R-Oklahoma). Note the bipartisan concern.
President-elect Trump may also appreciate that some in Congress appear very eager to implement a regulatory budget. Rep. Tom Price (R-Georgia), Budget Committee Chairman, has held hearings on the idea (which has bipartisan roots) and released a working paper. A statement of principles on regulatory budgeting was incorporated into the fiscal 2017 Budget Resolution; Sen. Mike Lee (R-Utah) introduced legislation to implement a regulatory budget, while also incorporating regulatory dark matter, in the 114th Congress, and will likely reintroduce it; and Rep. Paul Ryan, the Speaker of the House, included it in his widely touted BetterWay task force recommendations.
Part of the interest in a regulatory budget likely stems from the parallel, related campaign for dynamic scoring, since regulations have macroeconomic effect. To work properly and to be manageable, agencies need to be downsized ahead of time.
As the 115th Congress contemplates broad economic liberalization, Trump can jumpstart things with executive orders and oversight. Reagan showed that the president, within the rule of law, can do a lot. Trump promised action, and there are significant things he can do while permanent legislative reforms are pending. Below is a list, with links to more detail.
How the New President Can Roll Back Bureaucracy:
- Part 1: Freeze Regulations
- Part 2: Boost Regulatory Review Resources and Free Market Law and Economics Staff at Agencies
- Part 3: Professionalize Review, Revision, Repeal and Sunsetting of Regulations
- Part 4: Expand Number of Rules Receiving Cost Analysis
- Part 5: Scrutinize All Agency Decrees That Affect the Public (Dark Matter), Not Just Formal “Rules”
- Part 6: Enhance Rule Disclosure In the Unified Agenda of Federal Regulations
- Part 7: Track the Accumulation of Federal Regulations as Businesses Sectors Grow
- Part 8: Compile an Annual Regulatory Transparency Report Card
- Part 9: Improve the Classification of Major Rules
- Part 10: Account Separately for Economic, Health & Safety, and Environmental Regulations
- Part 11: Analyze “Transfer” Costs And Recognize Deadweight Costs of Government
- Part 12: Acknowledge and Minimize Indirect Costs of Regulations
- Part 13: Establish the “Office of No.”
Originally posted to Forbes.