The 2020 Unconstitutionality Index: 28 Federal Rules And Regulations For Every Law Congress Passes
Even in a presidential administration bent on cutting regulation (see my 2019 overview), the number of rules from hundreds of federal agencies (nobody knows exactly how many) will vastly outstrip the number of laws that Congress passes.
That triumph of the administrative state over the Constitution’s vesting of all lawmaking power solely in the Congress is all but total, and it holds under President Trump.
The year 2019 marks the midpoint of the Democratically controlled 116th Congress. It got underway January 3, 2019 in the wake of the Trump administration’s first two years touting its “one-in, two-out” regulatory rollback achievements in a series of year-end “Regulatory Reform Results” status reports
Liberals and progressives who didn’t want regulations cut in the first place protested early on. They argued that Trump “claims credit for some regulatory actions begun under Obama,” and that the suspect “deregulatory list ranges from bird feathers to grizzlies” — while at the same time bemoaning the alleged destruction of “safeguards.”
Trump action notwithstanding, the regulatory enterprise has enormous staying power with which Congress has yet to grapple apart from its use of the Congressional Review Act’s resolution of disapproval process to eliminate 16 Obama-era rules. Hundreds were eligible, however. Meanwhile it becomes harder over time for the president acting alone to streamline anything. Recommended For You
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With that backdrop, let’s look at rules vs. laws.
Congress Passed 105 Laws in 2019
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Trump was inaugurated in 2017; there were 97 public laws passed that year (the first session of the 115th Congress), and 313 in 2018.
Interesting with respect to 2018 was that, although many say Congress fails to “get things done,” the only other calendar years since 1992 with more laws enacted were 2000 (with 410) and 2006 (with 321).
But you don’ t want to know that from me; as a small-“l”-libertarian I prefer Congress to get things undone.
So on to today.
In 2019, the 1st session of the 116th Congress, lawmakers passed and the president signed 90 laws according to the Government Publishing Office’s archive of public laws. The archive, as of January 1, 2020, concludes with a series of Post Office related bills enacted December 13, and as such is preliminary.
In addition, a Govtrack legislative search yields 105 bills enacted in 2019 (also as of January 1, 2020), which we will also consider preliminary but darn-near final since three of them were just signed by the president on December 30.
So Congress passed, by this preliminary roundup, 105 laws in 2019.
As we always point out, among such annual legislative product one finds initiatives ranging from name and address designations for Post Offices and community centers for politicians and dignitaries (at least 20 of the 90 laws in 2019 do precisely that), to measures addressing robocalls, expansion of federal flood insurance, major budgetary and appropriations enactments and reauthorizations of agencies and mega-programs like the Farm Bill.
However, as usual—2019 legislative output notwithstanding—the unelected federal bureaucracy was far busier making law than Congress was.
Federal Agencies Issued 2,964 Rules in 2019
During calendar year 2016 under Barack Obama, agencies chalked up a record 95,894 page Federal Register. Within those pages, agencies issued 3,853 rules and regulations. Trump’s subsequent 2017 count of 61,308 pages delivered the lowest in a quarter century.
In contrast with both, the 2019 calendar year Federal Register contained 72,564 pages, Within those pages, interestingly enough, agencies generated an all-time low rules count of 2,964 (even with some of those rules being deregulatory in intent).
Like the tentative nature of the laws-count at this juncture, the 2019 page-and-rule tallies are preliminary ones from the National Archives’ Federal Register database and subject to modest adjustment; a final reckoning will issue within a couple months.
For decades until 2019, rules of varying significance (just like the vary significance of legislation) have numbered well over 3,000 per year.
The “Unconstitutionality Index”
Obviously in any given year, the specific rules agencies issue are unlikely to be tied to the laws enacted that very same year. Such would probably almost never be the case.
Nonetheless, in terms of flow, federal agencies in 2019 issued 28 rules and regulations for every law Congress passed (2,964 agency rules, compared to Congress’s 105 laws). The Index had been 11 in 2018.
The Index had been 34 at the end of Trump’s first year, and 18 in Obama’s last year. During Bush’s eight years, the multiple averaged 20, while Obama’s eight years averaged 29.
I like to call this ratio The Unconstitutionality Index; it’s simply the multiple of agency rules over the number of laws from our elected Congress in a calendar year. That is, simply:
NUMBER OF AGENCY RULES / NUMBER OF LAWS SIGNED BY POTUS
Coincidentally the average over the past decade has also been 28. The chart below depicts the Index going back to 2003 (you can go back to 1993 in the Ten Thousand Commandments roundup in Historical Tables, Part I).
As we’ve described before, there’s no pattern to any of this, since the numerator (# rules) and denominator (# laws) can vary widely for an assortment of uncorrelated or correlated reasons that people could probably write dissertations about.
Mechanically, the multiple will obviously be higher with fewer laws in the denominator, or with more regulations in the numerator, holding the other constant.
Trump’s aim is eliminating rules, but alas, eliminating a rule requires the issuance of another rule to zap it, which “worsens” the Index from a classical liberal perspective.
That said, Trump’s “record-setting” low regulatory output is “good” for the Index from an anti-administrative state perspective. But with fewer laws passed, perhaps owing to impeachment hiatus, the “punch” is taken away. Not that I’m advocating more laws, especially the ones that create gigantic new government programs.
Unavoidable complexities aside, the unchanged point and takeaway of the Unconstitutionality Index is that the unelected personnel of federal agencies created in the latter half of the United States’ existence, not elected members of Congress, do the bulk of lawmaking in America.
This state of affairs persists no matter the party in power, echoing our earlier point regarding the victory of the administrative state over rule of (constitutional) law.
The picture is even worse. If intrusive agency guidance documents and presidential executive orders are taken into account, non-legislative policy making assumes even greater prominence as an issue of concern. That is, “regulatory dark matter” would send the Unconstitutionality Index surging even higher if taken into account.
Lawmaking without elected representatives’ involvement goes well beyond what the Index now captures,it turns out. Important new executive orders to address guidance document abuse have been issued, but these will require extraordinary vigilance.