Tuesday, January 3, 2017

Why Legislate When You Can Regulate?

The 115th United States Congress was sworn in today.

Although our Constitution was crafted to include three separate but co-equal branches of government, I don't think it was happenstance that our Founders specifically established the responsibilities of Congress in Article I of the Constitution. The Executive branch was discussed in Article II and the Judiciary in Article III.

The legislative branch was designed to be the body where most of the power of the United States government resided. In fact, Article I, Section 8 of the Constitution enumerates 18 specific powers for Congress including the power the tax, to borrow money, to coin money and to declare war. This list includes a final, all-inclusive authority given to Congress that reads as follows.

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (emphasis added)

It seems pretty clear where all the power to makes rules and laws exists in our Constitution, doesn't it?

What are the defined responsibilities and powers of the President?

First, the President has the responsibility to "faithfully execute the Office of President of the United States" and "preserve, protect and defend the Constitution of the United States.” These words are in the Presidential oath.

Beyond that, there are only five enumerated powers for the President.

  • To serve as Commander-in-Chief of the Armed Services.
  • To grant pardons for offenses against the United States.
  • To makes treaties (with the advice and consent of the Senate).
  • To appoint ambassadors, judges and cabinet officers (with the advice and consent of the Senate)
  • To make appointments to fill vacancies for the offices above during recesses of the Senate. Those appointments must expire by the end of the next session of Congress (what are referred to today as "recess appointments")

With the above as context, let's look at a comparison of the number of regulations and rules that are being promulgated by the executive branch bureaucracy compared to the number of laws being passed by Congress.

Let's begin by looking at what has been happening with regard to additional regulations in the waning days of the Obama administration as recently reported by The Washington Examiner.

President Obama's lame duck administration poured on thousands more new regulations in 2016 at a rate of 18 for every new law passed, according to a Friday analysis of his team's expansion of federal authority. 
While Congress passed just 211 laws, Obama's team issued an accompanying 3,852 new federal regulations, some costing billions of dollars.

All of these rules and regulations end up in The Federal Register which saw a record-setting total of 97,110 pages for the year. That total is about 10,000 more pages than we have seen in recent years.

Here are the total annual printed pages in The Federal Register since 1936 to provide you with some historical perspective.




It is worth noting that 1980 (the last year of the Carter administration) held the previous record for the number of Federal Register pages. Coincidence?

You might think that 18 regulations issued for every one law passed is outrageous. I know our Founders would. However, President Obama's average during his eight years is over 29 regulations issued for every law passed. 2016 was actually a modest year on that score.

Regulating rather than legislating is not just something that Democrats do.

It has become emblematic of the way that Washington operates. Democrat or Republican. It does not matter.

The Bush Administration averaged over 20 regulations for every law passed. The Clinton
Administration  in the 1990's averaged over 25.

Clyde Wayne Crews of the Competitive Enterprise Institute calculates "The Unconstitutionality Index" that measures the extent to which the federal bureaucracy, rather than Congress, is making the rules that we are governed by. Crews has been calculating the index since 1993. You can go here
(page 82) for further historical perspective.




Crews prepares an annual snapshot of the regulatory state entitled "Ten Thousand Commandments" that details the size, scope and costs of federal regulations on the economy, on business and on individuals.

A few highlights from the 2016 edition.

  • The federal regulatory cost reached $1.885 trillion in 2015.
  • Many Americans complain about taxes, but regulatory compliance costs exceed the $1.82 trillion that the IRS is expected to collect in both individual and corporate income taxes from 2015.
  • Federal regulation is a hidden tax that amounts to nearly $15,000 per U.S. household each year. 

Donald Trump has stated that he wants to make regulatory reform a key part of his agenda. He has also stated that he "will formulate a rule which says that for every one new regulation, two old regulations must be eliminated.” Trump has also tapped his friend, billionaire investor Carl Icahn to be a special advisor on overhauling federal regulations.

Trump seems to be serious about the subject based on his words and actions thus far.

If he wants to "drain the swamp", there is no better place to start than the federal bureaucracy regulation machine.

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