Category Archives: regulation

This Week in Ridiculous Regulations

Last week, people got worked up over hamburgers and a television commercial about razors. Meanwhile the partial federal shutdown continued, and a bill to introduce a $15 federal minimum wage was introduced. Tuesday’s one-page Federal Register may have set a record for brevity, with just one agency notice and no new regulations. Regulations that did appear during the week range from Chinese archaeology to Rolls-Royce engines.

On to the data:

  • Last week, 10 new final regulation was published in the Federal Register, after 1 the previous week.
  • That’s the equivalent of a new regulation every 16 hours and 48 minutes.
  • Federal agencies have issued 12 final regulations in 2019. At that pace, there will be 231 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, 85 new pages were added to the Federal Register, after 69 pages the previous week.
  • The 2019 Federal Register totals 194 pages. It is on pace for 3,731 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. No such rules have been published this year, with just one since last June 12. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations is currently zero. The 2018 total ranges from $220.1 million to $2.54 billion, depending on discount rates and other assumptions.
  • Agencies have published no final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2019, no new rules affect small businesses; none of them are classified as significant. 2018’s totals were 660 rules affecting small businesses, 29 of them significant.

All of last week’s new final regulations:

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

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Philip Hamburger – Is Administrative Law Unlawful?

Philip Hamburger – Is Administrative Law Unlawful?

Administrative law is essentially a fancy name for regulation. This is arguably the most important regulatory studies book of the last decade. Hamburger argues that in many cases, yes, administrative law is unlawful. Regulatory agencies, not legislatures, do most of today’s legislating. Many agencies even have their own courts and judges outside of the traditional judicial system, which are immune from its checks and balances from the other branches.

A partial list of the administrative state’s systemic rights violations include “separation of powers, the grants of legislative and judicial powers, the internal divisions of these powers, the unrepresentative character of administrative lawmaking, the nonjudicial character of administrative adjudication, the obstacles to subdelegation, the problems of federalism, the due process of law, and almost all the other rights limiting the judicial power.” (pp. 499-500)

Hamburger traces the intellectual roots of modern American administrative power abuses back to absolutist royal prerogative under King James I of England and his Star Chamber in the early 1600s, and the German Historical School of the late 19th century.

While the reaction against James I eventually begat the Glorious and American Revolutions, German historicism had the opposite effect. It was a major ideological influence for early progressivism and President Woodrow Wilson, who did as much as any politician to enable the modern administrative state to grow. Then again, German historicism’s dominance also inspired a rebellious F.A. Hayek to emphasize instead a bottom-up philosophy of emergent order, which continues to be an animating principle of today’s larger market liberal movement.

This is a landmark book for regulatory scholars, though drily written. The innumerable distinctions, divisions, subdivisions, and legal parsing inherent to the subject reminded me of my distaste for legal studies.

Many people treat legal structures as unquestionably sacred and eternal. But in the end, people just made them up over time. Disturbingly few people ever ask “why,” not just “what.”

Hamburger is better than most legal scholars about this, and spends plenty of time digging into why principles such as separation of powers and due process are good ideas, or why we have separate codes and court systems for criminal law and administrative law. But the accumulated legalistic minutiae are so overwhelming that even Hamburger gets lost in all the what.

Agenda for the 116th Congress: Regulatory Reform

The first chapter in the new Competitive Enterprise Institute agenda for Congress, “Free to Prosper,” is on regulatory reform. Most of the Agenda is about reforming specific regulations. It is also important to focus on the rulemaking process itself—a better game needs better rules. For Congress, that means restoring a separation of powers. For several decades now, the executive branch has been growing too powerful. This rule change has been disastrous—federal regulations now comprise more than 180,000 pages and cost about $1.9 trillion every year. Congress should restrain an out-of-control executive branch by:

  • Defunding unapproved agency initiatives, and, where applicable, using the Congressional Review Act to rein in agency overreach.
  • Improving regulatory disclosure, transparency, and cost analysis of regulations and guidance. A first step could be to implement a regulatory report card to tally regulatory costs and flows in a user-friendly way, and promote more accurate reporting to enable analysis of the regulatory enterprise by third parties.
  • Implementing a bipartisan regulatory reduction commission and regulatory sunsetting procedures.
  • Requiring votes on major rules—those with estimated annual costs of $100 million or more. One option is to enact the Regulations from the Executive in Need of Scrutiny (REINS) Act.
  • Implementing a limited regulatory cost budget.

These reforms should apply to independent agencies, not just cabinet-level agencies. They should also apply to regulatory dark matter—the notices, guidance documents, and other materials that agencies use to regulate outside of the required notice-and-comment rulemaking process.

For more, read “Free to Prosper: A Pro-Growth Agenda for the 116th Congress.”

Harold Demsetz, 1930-2019

Over at cei.org, Iain Murray, Kent Lassman, and I reflect on the great economist Harold Demsetz’s intellectual legacy.

This Week in Ridiculous Regulations

Happy new year. The new 116th Congress was sworn in last week, and the partial federal shutdown continued. Some of 2018’s year-end regulatory data is now available. Wayne Crews crunched some numbers here and here, garnering coverage in the Washington ExaminerInvestor’s Business Daily, and elsewhere.

Right now is a weird time for regulation. The shutdown has lasted for several business days, and the Federal Register has slowed to a trickle. Wednesday and Thursday’s edition, for example, contained a combined zero proposed regulations and zero final regulations. Thursday’s edition was one page long, consisting solely of two notices, which might be a record. An average day’s edition contains about 270 pages and more than a dozen new final regulations.

For this week’s data, remember that the shutdown is throwing a wrench into the projections for 2019 totals. Also note that they line up with the calendar year, which started mid-week. For now, just consider the projections a form of entertainment. They will likely return to normal levels after the shutdown ends. As with previous shutdowns, the net impact on regulatory output will likely be about nil. Agencies are changing when they publish, not how much they publish.

New rules last week, such as they were, range from Alaskan airspace to California safety zones.

On to the data:

  • Last week, 10 new final regulations were published in the Federal Register, after 92 the previous week.
  • That’s the equivalent of a new regulation every 16 hours and 48 minutes.
  • Federal agencies have issued 1 final regulation in 2019. At that pace, there will be 84 new final regulations. Last year’s total was 3,367 regulations.
  • Last week, 439 new pages were added to the Federal Register, after 1,599 pages the previous week.
  • The 2019 Federal Register totals 33 pages. It is on pace for 2,750 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. No such rules have been published this year, with just one since last June 12. Six such rules were published in 2018.
  • The running compliance cost tally for 2019’s economically significant regulations is currently zero. The 2018 total ranges from $220.1 million to $2.54 billion.
  • Agencies have published no final rules meeting the broader definition of “significant” so far this year. 2018’s total was 108 significant final rules.
  • So far in 2018, 656 new rules affect small businesses; 29 of them are classified as significant. 2018’s totals were 660 rules affecting small businesses. 29 of them were significant.

Highlights from selected All final rules published last week:

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

This Week in Ridiculous Regulations

The shutdown continued all through Christmas week. But because the Federal Register works on a few days lag for many of its publications, it still had plenty of activity. It will also continue daily publication throughout the shutdown. But if the shutdown lasts much longer, the Register will likely go into a near hibernation, with daily page and rule counts possibly going into single digits.

The net impact of the shutdown will likely be near-zero. Notices and regulations would be published at different times, rather than not at all. Federal employees typically receive back pay for the time they are idled. There is also the matter that roughly 75 percent of the federal government is unaffected by the shutdown. With that context out of the way, new rules range from the last week range from kiwi fees to hydropower recreation.

On to the data:

  • Last week, 92 new final regulations were published in the Federal Register, after 82 the previous week.
  • That’s the equivalent of a new regulation every one hour and 50 minutes.
  • Federal agencies have issued 3,372 final regulations in 2018. At that pace, there will be 3,386 new final regulations. Last year’s total was 3,236 regulations.
  • Last week, 1,599 new pages were added to the Federal Register, after 1,641 pages the previous week.
  • The 2018 Federal Register totals 67,676 pages. It is on pace for 67,949 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. Six such rules have been published this year, one in the last week—the first since June 12.
  • The running compliance cost tally for 2018’s economically significant regulations ranges from $220.1 million to $2.54 billion. Until last week, the net costs were actually net savings.
  • Agencies have published 108 final rules meeting the broader definition of “significant” so far this year.
  • So far in 2018, 656 new rules affect small businesses; 29 of them are classified as significant.

Highlights from selected final rules published last week:

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

An Executive Order to Shine Light on Dark Matter

Over at The Hill, Wayne Crews and I make the case for an executive order that would limit executive power. It’s more plausible than it sounds:

There is precedent for such executive action. Ronald Reagan, Bill Clinton, and Barack Obama all issued executive orders to increase transparency and ensure that federal agencies follow better rulemaking procedures…

An executive order can set a positive precedent that Congress can later expand upon and codify. Such an executive order should strengthen disclosure requirements for guidance documents, which are not always made public. They should be made available in a single location and a standardized easily searchable format. After all, people cannot comply with regulations they do not know about.

Read the whole piece here. Wayne develops the idea more fully in his recent study “A Partial Eclipse of the Administrative State.”