The 2021 “Unconstitutionality Index”: 19 Federal Rules And Regulations For Every Law Congress Passes

Photo Credit: Getty

Even in a presidential administration bent on cutting regulation like the one that just decamped for Florida, the number of rules from hundreds of federal agencies (nobody knows exactly how many agencies there are) far outstrips the number of laws that Congress passes each year.

The administrative state’s dominance over the notion that the Constitution vests lawmaking power solely in the elected Congress is all but complete. And that held under President Trump the deregulator, too.

The year 2020 marked the end of the 116th Congress. And the arrival of President Joe Biden in 2021 marked the end of Trump’s “one-in, two-out” executive order-based regulatory rollback program that the White House documented in a series “Regulatory Reform Results” status updates over the past four years.

Trump actions notwithstanding, the regulatory enterprise has enormous heft and makes most laws. Indeed it is difficult for any president acting alone to streamline things permanently. Already Biden has rolled back much of the Trump deregulatory regime.  

With that quick backdrop let’s look at where the body of rules vs. laws stands today, and ponder what might come next.

 Congress Passed 178 Laws in 2020

In 2020, the 2nd session of the 116th Congress, lawmakers passed and the president signed 178 laws, according to the Government Publishing Office’s archive of public laws and Govtrack legislative searches.

Amid such annual legislative product one finds mundane initiatives like name and address designations for Post Offices and community centers for politicians and dignitaries. One also finds grand measures like those addressing Covid-19, major budgetary and appropriations enactments, and reauthorizations of agencies and mega-programs. Legislation may be found addressing everything from robocalls to the expansion of federal flood insurance.

However, as usual, the unelected federal bureaucracy was far busier making law than Congress, even with the Trump effort apply the brakes.

Federal Agencies Issued 3,353 Rules in 2020

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 counts dropped precipitously. The Federal Register tally of 61,308 pages in 2017 was the lowest in a quarter century.  

That count rebounded in 2020, as the Federal Register contained 86,356 pages. Within those pages, agencies generated a 3,353 rules.

While Trump’s new Federal Register count is the second-highest ever, the rule count remains at a historically low level. Furthermore, hundreds of those rules were deemed by the Trump White House as “Deregulatory.”   

Like laws, these rules can range from the routine and mundane to the significant.

But where laws number in the dozens or low hundreds each year, federal agencies’ rules and regulations have numbered well over 3,000 per year (except for 2019 under Trump, when 2,964 rules were issued).

The “Unconstitutionality Index”

Obviously in any given year, the specific rules that agencies publish are unlikely to bear much direct relation to the legislation passed by Congress that same year.

But the relative flows are interesting. Agencies in 2020 issued 19 rules and regulations for every law Congress passed (3,353 rules compared to the 178 laws passed by Congress).

The Index can fluctuate widely; it had been 28 in 2019, and 11 in 2018. It was 34 at the end of Trump’s first year, and 18 in Obama’s last year. There is plenty jumping around.

Read the full article at Forbes.