Joe Biden’s departments, agencies and commissions just wrapped up 2023 with 3,018 legally binding rules and regulations.
Betsy Ross flag painted by Claudia Crews; Cody, Virginia.
That’s fairly typical; apart from a Trump-era dip, annual rule counts always top 3,000. They exceeded 4,000 back in the 1990s and even surpassed 7,000 in the 1970s and early 80s.
Counts may be flat these days, but fat rules that are increasingly costly accumulate with little rollback in a Federal Register that just finished 2023 at 90,402 pages, the second-highest count ever. Sub-regulatory guidance documents and executive decrees play an increasingly prominent role these days under presidents inclined to act without Congress.
By comparison, as for bills signed into law in calendar year 2023, there were “only” 65 of them; of these, just 31 are attributable to the new 118th Congress, a strikingly low level.
The first session’s tally is likely to rise if, as is typical, a bundle of laws get signed by Biden this month of January; there’s normally a bit of lag that way.
In any event, the New York Times
Another perspective is that Congress in recent sessions has over-legislated with the CARES (Coronavirus Aid, Relief, and Economic Security) Act; the Families First Coronavirus Act; the American Rescue Plan; the Bipartisan Infrastructure Law; the CHIPS and Science Act; the Inflation Act; the National Defense Authorization Act signed just before Christmas, and more.
Laws range from such colossal enactments to the puny—like 2023’s Duck Stamp Modernization Act or post office renamings.
The 247 laws of 2022 invoked favorably by the Times was a relatively high count (the average for the most recent ten years is 173). It seems entirely appropriate now and then to pause a beat without calling it dysfunction, even when partisan turmoil abounds as it does today. After all, these new interventions are being supplemented by spending and debt limit increases (the debt just topped $34 trillion) that, given inherently regulatory progressive governance, herald more derivative rule-writing at the agency level.
The plusses and minuses of “gridlock” notwithstanding, federal administrative agencies rather than the elected Congress do the bulk of lawmaking despite the Constitution’s Article I vesting enumerated legislative powers solely with Congress.
The New Year and the opening of the second session of 118th Congress make this a good time to look at how things shook out in Biden’s third calendar year with respect to respective lawmaking activities and ambitions. The “Unconstitutionality Index” below presents the simple ratio of rules issued by agencies relative to laws passed by Congress and signed by the president during a calendar year.
The 2024 Year "Unconstitutionality Index"
As noted, in calendar year 2023, federal regulatory agencies issued 3,018 final rules. But by contrast, laws from the outgoing 117th and 118th Congress in 2023 totaled 65 (figures remain preliminary at this point). The corresponding figures in 2022 and 2021 were 247 and 143 new public laws, respectively.
The upshot here is that 46 agency rules were issued for every law passed by Congress in 2023, compared to 13 the year before, as the chart shows. The average over the past decade has been 24 rules issued for every law passed.
As with prior years, laws from the first session of the 118th Congress may get signed this month, and will be incorporated into next year’s Index. Such calendar-year public law compilations permit comparisons with calendar-year agency rule totals.
This year’s “Unconstitutionality Index” of 46 marks a record since the 54 of 1995, but obviously the number of rules and laws—both the numerator and denominator—can and do jump around unpredictably, and timing and scheduling of official archiving of either can fluctuate. The new Index would be lower, for example, had Biden scheduled a late-December bill-signing event.
Note that rules issued by agencies would not be expected to be related to the current year’s laws, but rather would more typically embody the realization of prior years’ legislative measures. For example, effects of the recent infrastructure and inflation legislation that began materializing in 2023 rulemakings will continue.
Regardless, the Unconstitutionality Index provides appropriate big-picture framing and context about rules, flows, magnitudes, the outsized agency role in lawmaking, and the disinclination on the part of Congress to jealously guard that task.
Furthermore, on top of executive branch rulemaking, the reach of executive orders, memoranda, agency notices, administrative interpretations and other bits of regulatory dark matter are substantial and can sometimes substitute for formal lawmaking. These should be incorporated into an Index in certain contexts, but no formal compilation of them exists (your correspondent does maintain this separate informal one).
We blame agencies for regulatory overreach, often legitimately so, since from an agency’s perspective the gauges of productivity are growth of its budget, employee headcount and the body of regulation it creates. But congressional forays beyond enumerated powers are more consequential than the most invasive of agency initiatives, and are the prime mover and source of “authorization,” whether explicit or simply seized by a bureau. Congress, after all, created the bureaus.
The Index, and versions of it incorporating the inventory of guidance documents, can help keep the centrality of the Administrative State uppermost in the minds of policymakers, perhaps inspiring reforms and restraints such as regulatory budgeting, regulatory reduction commissions, congressional approval of rules and revival of a Congressional Office of Regulatory Analysis (one did exist).
As the debt limit fight looms in 2024 there will be fireworks aplenty over spending. But there may also be more attention paid to the legislative/regulatory state’s contribution to federal bulk. Rather than fixating on “getting things done”—rather than seeing a low number of laws or regulation as “dysfunction”—an alternative take is to appreciate the need to Get Things Undone in 2024.
