Joe Biden’s Year in Federal Regulation, 2021

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Today is New Year’s Eve. Yesterday, December 31, 2021 was the last federal workday of the year.

This presents an obvious opportunity to survey the Federal Register for the first time under Joe Biden.

The Federal Register is the daily depository of rules and regulations produced by hundreds of federal departments and agencies.

While the first few weeks of 2021 still belonged to Trump, the drawing to a close of Biden’s first calendar year in the White House lets us take a broad look at the current occupant’s regulatory output and how it stacks up to predecessors.  

As the saying goes, Donald Trump’s regulatory reform and deregulatory agenda wasn’t something Biden tossed aside lightly; he hurled it away with great force, systematically revoking it in word and deed.

For reference, at year-end 2020, Donald Trump’s overarching “one-in, two-out” directive Executive Order 13,771 was being met in technical terms, even upon the emergence of pandemic with its torrent of spending, emergency actions and regulation. That doesn’t mean Trump’s program lacked an endless supply of critics and accusations of failure (see my deep analysis of this automatized deep state feature here). There was never a chance for a reform minded executive surrounded by a comfortable bureaucracy uninterested in having its boat rocked to actually shrink the government without Congress engaged and backing up the changes legislatively. This also applies to any future aspirant. Plus, Trump had big-government urges of his own, analyzed elsewhere.  

Biden has no regulatory reform project to monitor the success of, so we can’t do that. He rejects, like those individuals and institutions that surround him, the notion of regulatory streamlining altogether, the Trump amalgam of which he called “harmful policies and directives.” It’s only Biden’s first year, but observers will be monitoring additions, not subtractions.

Under Biden, the regulatory establishment has its Hall Pass back, and it shows.

The Federal Register page count ended the year with 74,532 pages. Here’s the December 30, 2021 cover.

The count’s unadjusted; the National Archives will eventually subtract a small percentage of skips and blanks and post a final tally.

The 2020 count under Trump was far higher, at 86,356. There had been “only” 61,308 pages back in Trump’s first year of 2017, which had been the lowest count in a quarter-century (since Bill Clinton’s 61,166 pages in 1993), as can be seen in the table below.

While former President Obama set the all-time record with 95,894 Federal Register pages in 2016, Trump’s first year represented a 35 percent drop from that height. But Trump’s final year made him number two, well above Obama’s non-record years and way beyond the Clinton and Bush eras.

How come? Well, broadly, government does far more things now. But down in the trenches, as part of the bureaucracy’s preservation arsenal, removing rules that ought not have been written in the first place still requires writing new rules to do it. That’s part of the workings of the 1946 Administrative Procedure Act’s public notice-and-comment mechanism. So, paradoxically, any concerted Trump moves on “one-in, two-out” in service of deregulating and removing that which came decades before required fattening the Register to some extent. The same will apply for any future adventurer.

Things are more complicated than that, of course; see the Trump “bookend” edition of Ten Thousand Commandments for some of the details, including how many rules and guidance documents were issued under both Trump and Biden relating to the Covid-19 response that would not otherwise have been part of the picture. For example, in both of the past two years the Small Business Administration issued dozens of significant rules pertaining to the Paycheck Protection Program created under the coronavirus CARES Act.

Despite Biden’s lower Federal Register page count, we’re nonetheless back in the mode of not just unapologetically but combatively fattening the Federal Register, at the behest of a president who calls himself a “capitalist” but who believes he and other progressive experts know best in their pursuit of a slate of new domestic forever wars that involve both heavy government spending and regulation.

For reference and perspective, here’s the breakdown since the first President Bush of both page counts and the number of rules (to be covered next) in the Federal Register since 1989.

Read the full article at Forbes.