The 2025 Unconstitutionality Index: Exposing Congress’s Abdication Of Power
One of the themes of the incoming Trump administration is that federal administrative agencies, rather than the elected Congress, write most laws. This contradicts the Constitution’s Article I, which vests enumerated legislative powers solely with Congress. Such a dynamic, they and many others argue, needs to change.
In pursuit of these “swamp-draining” ambitions, we present the 2025 Unconstitutionality Index—a straightforward ratio of the number of rules issued by agencies relative to laws passed by Congress and signed by the president during a calendar year.
Joe Biden’s departments, agencies, and commissions wrapped up 2024 with 3,248 rules and regulations. This is fairly typical; apart from a Trump-era dip, annual rule counts consistently exceed 3,000. They peaked at over 4,000 in the 1990s and surpassed 7,000 in the 1970s and early 1980s.
While rule counts remain relatively steady, their weight and costs accumulate with little rollback. The Federal Register, the government’s official rulemaking publication, ended 2024 with a record-breaking 107,262 pages. Among these pages, for example, is a prominent new Biden rule that would ban certain popular gas water heaters.
In contrast, the number of bills signed into law in 2024 totaled “only” 175—still a notable increase from the 68 signed in 2023. On December 23 alone, Biden signed 50 bills. The enactments of 2024 ranged chronologically from Public Law 118–35, “An Act Making Further Continuing Appropriations for the Fiscal Year Ending September 30, 2024,” signed January 19, 2024—all the way up to P.L. 118–209, the National Advisory Council on Indian Education Improvement Act, signed December 23.
This figure of 175 is preliminary but reliable, based on my ongoing cross-referencing of records from the Government Accountability Office, Congress.gov, and the National Archives.
Tying it all together, the “Unconstitutionality Index” below shows that agencies issued 19 rules for every law passed by Congress in 2024. The Index stood at 44 the year before, and the average over the past decade has been 23 rules for every law.
As shown, counts over the past decade peaked at 313 laws in 2018, with a ten-year average of 169. As of this writing, Biden has signed at least 15 laws already in January 2025, mostly post office name designations. These late laws from this final session of the 118th Congress will be incorporated into next year’s Index, alongside the output of the first session of the 119th Congress.
The numbers of rules and laws—both the numerator and denominator of the Index—vary unpredictably, of course. Timing and scheduling of official archiving can also cause fluctuations in the Index. For instance, the Index for 2024 would have been higher had Biden scheduled a January bill-signing spree, as he did in 2023 instead of the December one. (That’s not to say January 2025 won’t deliver a spree of it own.)
Both laws and regulations range from trivial to highly consequential. Alongside post office renamings and measures like 2023’s Duck Stamp Modernization Act, impactful legislation includes spending bills and debt limit increases that empower the regulatory state. Recent congressional sessions have yielded the CARES (Coronavirus Aid, Relief, and Economic Security) Act, the Families First Coronavirus Response Act, the American Rescue Plan, the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act. These were huge and transformative, interventions that can swamp the worst of the administrative state’s carryings-on.
Agency rules exhibit similar variability, with rules issued in a given calendar year often stemming from legislative measures enacted in prior years. Beyond formal rulemaking, executive orders, memoranda, agency notices, administrative interpretations, and other forms of regulatory “dark matter” frequently substitute for traditional lawmaking. These should also be accounted for in an expanded Index.
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