The soon-to-be finished year of 2015 has been one full of milestones and records, but this one is certainly not worth celebrating. The Obama administration has been busier than even rolling out new regulations. The 2015 Federal Register has amounted to 81,611 pages of new and proposed ones, more than the federal government has ever before issued in a single year. Per The Hill:
This year’s daily publication of the federal government’s rules, proposed rules and notices amounted to 81,611 pages as of Wednesday, higher than last year's 77,687 pages and higher than the all-time high of 81,405 pages in 2010 — with one day to go in 2015.
Let's stop and consider this for a minute. The previous record was set in 2010, when the Democrats had control of both the Executive and Legislative branches. Since the Republicans took over in 2011, the number generally went down, but in the first year of the "historic" Republican majority elected in 2014, a new record has been set.
It's tempting to blame the Republicans in Congress for allowing this record to be set, but while they certainly do deserve some of it, these regulations are creations of Executive Branch agencies like the EPA. Even so, the Republicans in both houses of Congress have historically failed to use their powers of the purse and oversight to curtail or mitigate regulations proposed by the increasingly imperial Obama White House.
As far as what's actually in this gigantic list, Clyde Wayne Crews of the Competitive Enterprise Institute does the yeoman's work ofbreaking it down. The results are what you might expect:
Among this year’s pages so far are 3,378 final rules and regulations. Of those final rules, 545 are recognized as having effects on small businesses. Some rules this year have been especially hefty, such as the Environmental Protection Agency’s Clean Power Plan and its Waters of the United States rule, and the Federal Communications Commission’s net neutrality order.
Another 2,334 proposed rules were issued in 2015 and are under various levels of consideration.
Beyond these proposed and enacted rules, the Register also includes another nefarious category, agency "guidance documents". Crews explains:
Regulation no longer stops with the rules we can readily count in the Federal Register. Agency guidance documents and numerous other kinds of notices, bulletins, circulars, memoranda and decrees make up “Regulatory Dark Matter.”
There are several hundred guidances in effect acknowledged to be “significant.” And the Federal Register this year contains 23,901 “notices.” Most are insignificant, but lots of stuff gets buried there, and still more doesn’t even appear in the Federal Register at all. No one even knows where to find all the agency “guidance” that’s out there.
So, where do we go from here? 2016 is an election year, so make sure the Republicans in both the House and Senate know that investigating these new rules--and producing some tangible results--is an important part of earning yet another majority. It's not too late to work on primarying people, especially if there's already a good candidate in the race.
There are a few practical ways for Congress to do this. Crews mentions a couple of ways specifically. The first is utilizing the 1996 Congressional Review Act's "resolutions of disapproval", which invalidates a rule if it passes both Houses of Congress and secures either the President's signature or a Congressional override of a veto. It's a measure that has been rarely used--only 109 times since 1996--but these resolutions are a tool that Congress absolutely should be using aggressively, even if they cannot override a veto. The fact that there were only three proposed RODs in 2015 is a disgrace.
As for the other avenues of Congressional opposition, here's what Crews has to say:
The House of Representatives passed the REINS Act (Regulations from the Executive In Need of Scrutiny) to do that, but the Senate seems disinclined to pass it and force President Obama’s promised veto. If Congress isn’t willing to force Obama to explain why unelected should make laws, it must be because the Republican Congress isn’t willing to end over-delegation. We’ll know for sure if a Republican wins the 2016 election and REINS-like legislation disappears altogether.
Meanwhile, Congress should require strict adherence to Administrative Procedure Act formalities for regulatory dark matter as a priority of the 114th Congress in 2016. The public needs, at minimum, an opportunity to read, comment and object.
Both of these are excellent ideas, but there's another way that Crews doesn't mention. It might sound strange, but we should copy what the Canadians did earlier this year while Stephen Harper was still Prime Minister. In April, they passed the Red Tape Reduction Act. This made Canada the first country in the world to require that a regulation of equivalent burden must be removed for each new one enacted. It's an almost revolutionary idea that I'm surprised didn't surface here first.
As for Republican Presidential candidates, our nominee must be willing to end these record setting years of new regulations, if elected. He (or she) must work to repeal the bad ones already on the books, and the Obama years have given us plenty of opportunities for that. We've heard some promising things thus far from many of them, but holding them to these promises is what we have to do going forward.