Category Archives: regulation

This Week in Ridiculous Regulations

Wednesday, the day before the Competitive Enterprise Institute’s 35th anniversary gala dinner, saw no new final regulations published in the Federal Register. This may be the first non-shutdown Federal Register issue with no new rules since this blog series began tracking such things in 2012 or so. Even so, the 2019 Federal Register is poised to break 30,000 pages this week. Meanwhile, agencies published new regulations ranging from Blazing Paddles to cotton warehouses.

On to the data:

  • Last week, 90 new final regulations were published in the Federal Register, after 43 the previous week.
  • That’s the equivalent of a new regulation every 1 hour and 52 minutes.
  • Federal agencies have issued 1,287 final regulations in 2019. At that pace, there will be 2,682 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 421 notices, for a total of 10,380 in 2019. At that pace, there will be 21,625 new notices this year. Last year’s total was 22,205.
  • Last week, 1,461 new pages were added to the Federal Register, after 1,164 pages the previous week.
  • The 2019 Federal Register totals 29,027 pages. It is on pace for 60,473 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule has been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published 33 final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 229 new rules affect small businesses; 12 of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

Highlights from last week’s new final regulations:

For more data, see Ten Thousand Commandments and follow @10KC and @RegoftheDay on Twitter.

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Herbert A. Simon – Administrative Behavior, 4th Edition: A Study of Decision-Making Processes in Administrative Organisations

Herbert A. Simon – Administrative Behavior, 4th Edition: A Study of Decision-Making Processes in Administrative Organisations

Realistic, subjective, and humble—probably a reflection of Simon’s time at the University of Chicago. Rather than the typical snake-oil management guru who pretends to know everything, Simon that there is no perfect structure for an organization. Every possibility has at least some drawbacks. Simon instead emphasizes the need to treat organizational structure as an ongoing process, rather than a finished product. Often personnel will dictate what structures work best, and personnel change over time. Technology has its own impacts, and Simon even in 1947 saw that computers would have significant effects on the workplace. Part of trial is error, and wise managers will accept this as part of the process. The trick is being humble enough to admit mistakes and being flexible enough to try different approaches with more promise.

Peter Wallison – Judicial Fortitude: The Last Chance to Rein In the Administrative State

Peter Wallison – Judicial Fortitude: The Last Chance to Rein In the Administrative State

The main insight I took from this book is probably not the one Wallison intended, though it is one he makes several times. America’s founders did not foresee the rise of political parties, and this was their biggest mistake. They set up the federal government with checks and balances so that the different branches would compete against each other, not different parties. Having distinct federal and state levels of government provided an additional level of non-party competition.

This system does not work so well when powerful political parties exist. If one party controls both Congress and the presidency, those two branches do not compete with each other, they collude.

The first-past-the-post electoral system the founders established is also naturally conducive to a two-party system—and the two parties which usually oppose each other will cooperate to prevent rule changes that would allow additional competing parties.

This probably doesn’t matter so much; Europe’s experience with proportional representation has shown that most people coalesce around two polar ideologies, and most political parties represent various points on the spectrum between those two poles—meaning proportional representation doesn’t differ much from the U.S. system in terms of policy outcomes, muting its appeal. It merely has higher transaction costs for building coalitions, a separate issue well outside of Wallison’s subject matter. In the U.S. case, the dominant parties oppose proportional systems for their own organizations’ sake, rather than to promote conservative or progressive values.

The primary point Wallison does make is also compelling—judicial restraint and judicial activism are both ineffective safeguards against a regulatory state that lacks transparency and democratic accountability. A passive judiciary lets Congress and the executive make and enforce all sorts of crazy laws and regulations. This is a rather obvious problem. Legislation from the bench is also a problem; besides offending democratic sensibilities, repeal of judicial policy mistakes is extremely difficult.

Wallison instead prefers a judiciary with the fortitude to tell Congress what’s what when it passes unconstitutional legislation. More importantly, executive branch agencies issue thousands of regulations, guidance documents, and other regulatory “dark matter” outside of required legal processes. These policies lack transparency, democratic accountability, and in many cases are unconstitutional. The judiciary needs to gain the fortitude to strike such policies down when cases present the opportunity. Wallison also draws heavily on my colleague Wayne Crews’ research in developing this argument, which is a plus.

Introducing Antitrust Basics

Often, a drips-and-drabs approach to learning an issue over a period of time is as effective as a single intense cram session. To that end, this post inaugurates a series to familiarize readers over time with the basics of antitrust regulation. This is important because the current antitrust revival is reaching a fever pitch. This could have multi-billion dollar consequences in the next few years for everything from the future of 5G networks to online retail to the structure of social networks.

The Justice Department and the Federal Trade Commission recently carved out their respective turf for upcoming investigations of tech companies. Justice will handle Google and Apple, and the FTC will handle Amazon and Facebook. Congress is also launching its own investigation. At the state level, somewhere from 12 to 20 state attorneys general are mulling their own joint investigation. Other industries from hospitals to concert tickets are also on some target lists.

Progressives have spent years advocating a neo-Brandeisian approach of more active antitrust enforcement. Now they are gaining unexpected conservative allies in President Trump and a newly visible right-wing populist movement. There has not been a major antitrust case since the late-1990s Microsoft case, but given current political winds, that may soon change.

Oscar Wilde observed that “The emotions of man are stirred more quickly than man’s intelligence.” Fortunately, it will likely be more than a year before any of the just-announced investigations result in court cases—if they do at all. That will hopefully be enough time for passions to cool, and more reasoned analysis to prevail. Part of that process is taking some time to study the main principles, history, and applications of antitrust policy.

To that end, Wayne Crews and I recently wrote a paper, “The Case against Antitrust Law: Ten Areas Where Antitrust Policy Can Move on from the Smokestack Era.” Our colleagues Jessica Melugin and Iain Murray are offering regular antitrust analysis as well. CEI also maintains a microsite, antitrust.cei.org, that collects our antitrust scholarship in one place.

This series will start with the big picture and progressively narrow down to more specific issues. Initial posts will sketch out broader themes of antitrust regulation and the main sides of the debate. After that, the series will go through a “Terrible Ten” list of failed antitrust policies that should be abolished.

Larger themes in upcoming posts include the relevant market fallacy; the importance of treating competition as a spectrum rather than an on/off switch; regulatory uncertainty; the Brandeis-era big-is-bad standard vs. the consumer welfare standard; and antitrust enforcement’s tendency to entrench incumbent companies and increase rent-seeking; and the importance of thinking long-term.

From there, we will apply those themes and principles to specific policy areas that Congress and regulators should reform. In case after case, antitrust regulation protects incumbent companies from competition, encourages rent-seeking, erodes the rule of law, and slows innovation. This is a high price to pay for a policy that also works against its advocates’ goals regarding concentrated power, economic inequality, democracy, and other values.

Given antitrust regulation’s lack of redeeming qualities, we favor abolishing it outright. Short of that, regulators and courts should defend the consumer welfare standard against neo-Brandeisian and Trumpian populism. In the current political climate, preserving the consumer welfare standard may be the best possible near-term outcome.

This Week in Ridiculous Regulations

Last week, a Canadian team won the NBA championship for the first time, while an American team won the Stanley Cup. This week brings us the Competitive Enterprise Institute 35th Anniversary Dinner and Reception. Meanwhile, agencies published new regulations ranging from Segelflugzeugbau to e-cigarettes.

On to the data:

  • Last week, 43 new final regulations were published in the Federal Register, after 56 the previous week.
  • That’s the equivalent of a new regulation every 3 hours and 54 minutes.
  • Federal agencies have issued 1,197 final regulations in 2019. At that pace, there will be 2,603 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 447 notices, for a total of 9,893 in 2019. At that pace, there will be 21,507 new notices this year. Last year’s total was 22,205.
  • Last week, 1,164 new pages were added to the Federal Register, after 1,241 pages the previous week.
  • The 2019 Federal Register totals 27,905 pages. It is on pace for 60,664 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule has been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published 31 final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 216 new rules affect small businesses; 11 of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

Highlights from last week’s new final regulations:

For more data, see “Ten Thousand Commandments” and follow @10KC and @RegoftheDay on Twitter.

This Week in Ridiculous Regulations

While the administration is so far keeping to its one-in, two-out policy for proposed rules, new trade and antitrust policies are likely to increase net burdens by billions of dollars. The nation also celebrated National Donut Day, a Competitive Enterprise Institute favorite. Meanwhile, agencies published new regulations ranging from video calls to flying to Cuba.

On to the data:

  • Last week, 56 new final regulations were published in the Federal Register, after 41 the previous week.
  • That’s the equivalent of a new regulation precisely every 3 hours.
  • Federal agencies have issued 1,154 final regulations in 2019. At that pace, there will be 2,623 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 484 notices, for a total of 9,446 in 2019. At that pace, there will be 21,469 new notices this year. Last year’s total was 22,205.
  • Last week, 1,241 new pages were added to the Federal Register, after 1,128 pages the previous week.
  • The 2019 Federal Register totals 26,737 pages. It is on pace for 60,766 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule has been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published 31 final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 208 new rules affect small businesses; 11 of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

Highlights from last week’s new final regulations:

For more data, see “Ten Thousand Commandments” and follow @10KC and @RegoftheDay on Twitter.

This Week in Ridiculous Regulations

President Trump threatened a new tariff on all Mexican goods, potentially scuttling the NAFTA/USMCA agreement. My colleague Wayne Crews went through the new Spring 2019 Unified Agenda and found 3,791 new regulations in the pipeline, and the 2019 Federal Register surpassed 25,000 pages. Meanwhile, during a four-day week due to Memorial Day, rulemaking agencies published new regulations ranging from anchovies to inertia locking devices.

On to the data:

  • Last week, 41 new final regulations were published in the Federal Register, after 77 the previous week.
  • That’s the equivalent of a new regulation every 4 hours and 6 minutes.
  • Federal agencies have issued 1,098 final regulations in 2019. At that pace, there will be 2,615 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, agencies published 347 notices, for a total of 8,962 in 2019. At that pace, there will be 21,339 new notices this year. Last year’s total was 22,205.
  • Last week, 1,128 new pages were added to the Federal Register, after 1,668 pages the previous week.
  • The 2019 Federal Register totals 25,492 pages. It is on pace for 60,696 pages. The 2018 total was 68,082 pages. The all-time record adjusted page count (which subtracts skips, jumps, and blank pages) is 96,994, set in 2016.
  • Rules are called “economically significant” if they have costs of $100 million or more in a given year. One such rule has been published this year. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations currently ranges from $139.1 million to $175.8 million. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published 29 final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, 195 new rules affect small businesses; 11 of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, with 29 of them significant.

Highlights from last week’s new final regulations:

For more data, see the study “Ten Thousand Commandments” and follow @10KC and @RegoftheDay on Twitter.