Regulation Without Representation: A Quick Revisit Of The “Unconstitutionality Index”

Administrative agencies rather than the elected Congress do the bulk of U.S. lawmaking despite the strictures of Article I of the Constitution — at least in terms of the numbers of rules vs. laws.

There are a few dozen laws enacted every year by Congress. But cabinet departments and uncountable agencies and commissions issue over 3,000 rules and regulations every year (apart from a Trump-era dip below that level).

Laws and rules alike range from the trivial to the colossal. Some laws merely assign names to Post Offices. But others have extraordiary impact. In just in the past three years, we have witnessed passage of the CARES (Coronavirus Aid, Relief, and Economic Security) Act; the Families First Coronavirus Act; the American Rescue Plan; the Bipartisan Infrastructure Law; the CHIPS and Science Act; and the Inflation Act. We saw the supplementation of these by debt limit increases, and find ourselves staring at yet another looming fiscal cliff.

These enactments have not only entailed trillions of dollars in new spending, but they are also accompanied by extraordinary interventions, both explicit and implicit, baked into the cake well before the Administrative State gets involved with its rulewriting. The synergies have become such that we need a Grand Unification Theory of Spending and Regulation in the wake of COVID.

So that’s the qualifier. We often say agencies make more law than Congress, and we’re going to say the same here. But the caveat is that when Congress does weigh in, it can far more consequential than even the most invasive agency initiative. We blame agencies for regulatory overeach, and legitimately so; but need to remind ourselves that Congress sits at the root of it all.

Read the full article on Forbes.