“They promise the blessings of the Garden of Eden, but they plan to transform the world into a gigantic post office. Every man but one a subordinate clerk in a bureau.”—Ludwig von Mises, Bureaucracy (1944)
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The end run around Congress’s power to legislate is gapping wider.
It includes presidential and federal authority exercised not just through executive orders, but a circus mirror of rules, guidance documents, memoranda, bulletins, manuals, circulars, public notices and other agency proclamations.
And that doesn’t include a tax code simplified beyond all comprehension.
The open fire hydrant of rulemaking is occurring outside the U.S. Congress by the White House and federal agencies. Many rules are not being reviewed by the Congress or the public.
American taxpayers are supposed to be governed by laws passed by Congress and signed into law by the President in this representative democracy. But leviathan has taken over, there is no downside for overzealous bureaucrats who now hallucinate rules into being and then whoop them past Congress into the U.S. economy, exerting a gravitational pull on growth.
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The rules hit all levels of American life, health care, retirement, the workplace, education, and the Internet, says Clyde Crews, Jr., a top researcher and respected author with the libertarian-leaning Competitive Enterprise Institute, in his new report, “Mapping Washington’s Lawlessness 2016.”
According to Crews’ estimation of the “regulatory dark matter,” the federal government has published 524,251 “public notices” describing federal rules that affect the economy in the Federal Register since 1994. Federal agencies issued 3,554 rules and regulations in 2014, versus the 224 bills Congress passed and the president signed into law last year. “The average has been 26 rules for every law over the past decade,” Crews says.
The consequence of the vegetative universe is complete lack of accountability to the American taxpayer. Crews says the federal government now gets away with issuing misleading unemployment and GDP statistics, often “to justify increased government spending.”
Federal agencies routinely deny Freedom of Information Act requests (throw a dart at any of them); federal workers use private email for official business (i.e. former Secretary of State Hillary Clinton); and routinely “lose” government emails (i.e. the IRS). “Washington’s attitude toward the public is to conceal rather than disclose,” Crews says.
Neither the federal government nor the American taxpayer has any clear idea of the economic cost of this barrage. The cost of federal regulation was estimated to hit $1.88 trillion last year, bigger than the gross domestic product of South Korea, Crews has estimated, but no one knows for sure.
Consider this. In a 2015 Senate Judiciary Committee hearing, Chairman Chuck Grassley (R-IA) noted: “The Federal Register Indicates there are over 430 departments, agencies, and sub-agencies in the federal government.”
The Senator apparently was citing the Federal Register Agency List, which depicts 438 federal agencies. That’s a lot of rulemaking entities.
But note that the Senator used the word “indicates.” That means no one in government knows for sure how many rulemaking agencies and units there really are in the federal government.
“If nobody knows how many agencies exist by whose decrees we must abide, that means we do not know how many people work for the government (let alone contractors making a living from taxpayers) nor how many rules there really are,” Crews says.
On top of that, the White House has refused to enforce laws passed by Congress, Crews notes.
That includes “the July 2013 Treasury Department’s unilateral delay, first by blog post, then by IRS guidance, of the Affordable Care Act’s (ACA) employer mandate and its accompanying tax penalty for non-compliance,” Crews says. “Then came the November 2013 declaration—first by the president during a news conference and subsequently in Department of Health and Human Services guidance material—that insurers could continue to sell non-ACA compliant health policies.”
Blame Congress for not pushing back harder and the executive branch for exacerbating the problem. “Congress rarely uses its most powerful accountability tool, the Congressional Review Act, to pass resolutions of disapproval (RODs) of costly or controversial agency rules,” Crews says.
In contrast, Canada and Great Britain have both cut back on the federal vegetative universe by enacting “rule-in, rule-out” requirements with some success, Crews adds.
President Ronald Reagan tried to rein in regulatory excess by centralizing a review process at the Office of Management and Budget to make sure the costs of federal rules don’t exceed the benefits.
But President Bill Clinton undid that move with, what else, an executive order in 1993, soon after he was elected, dialing back OMB oversight in order to “reaffirm the primacy of federal agencies in the regulatory decision-making process.”
Worth noting here is that the executive order record holder is Franklin Delano Roosevelt with 3,467 executive orders. President Barack Obama had issued a total of 236 executive orders as of October 16, 2015. There were 777 presidential executive orders published from 1995 up until that date.