Joe Biden’s Happy New Year In Federal Regulation

Tomorrow is New Year’s Eve. Today, December 30, 2022, is the last federal workday of the year.

This affords the opportunity to survey the Federal Register and the flow of federal regulations for the second calendar year-end under Joe Biden, and to observe how his regulatory output stacks up to predecessors.

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The Federal Register is of course the daily depository of all the rules and regulations produced by federal departments and agencies.

The bottom line is that Biden’s rulemaking in pursuit of an extreme progressive agenda is returning the country to pre-Trump regulatory heights, and aims at proceeding far beyond.

In other venues, the success and failures of the regulatory rollback agenda of Donald Trump have been examined in depth.

Biden has no regulatory reform project to monitor the success of, having explicicitly rejrcted regulatory streamlining. He deemed the Trump’s approach to consist of “harmful policies and directives” and instructed agencies to pursue regulatory “net benefits,” as defined by his progressive appointees and pensioned Beltway careerists in their top-down administation of climate, “equity” and a range of economic and social engineering policies. The shocking and arrogant extent of Biden’s “Whole-of-Government” approach to transformation of the United States is detailed in the 2022 edition of Ten Thousand Commandments.

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The Federal Register page count ended the year at with 80,756 pages on December 30, 2022, a big jump upward compared to Biden’s own year-end tally of 73,321 in 2021. That’s the gross count; the National Archives will eventually subtract a small percentage of skips and blanks and post a final tally, but that typically doesn’t change the big picture. (My own adjusted tally is already slightly lower, at 80,597 pages.)

By contrast, there were “only” 61,308 pages back in Trump’s first year of 2017, which had been the lowest count in over a quarter-century (since Bill Clinton’s 61,166 pages in 1993; see the table below). Trump’s first year represented a 35 percent drop from former president Barack Obama’s all-time record-setting 95,894 pages.

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Federal Register pages and number of rules from Bush I to Trump

It may come as a surprise that the 2020 count under Trump gave him the number two spot, at 86,207 pages. That was way beyond Biden today, more than Obama’s non-record years, as well as greater than page counts were back in the Clinton and Bush eras.

Trump’s optics were damaged by the fact that removing rules that ought not have been written in the first place requires writing new ones replacing them under the 1946 Administrative Procedure Act’s public notice-and-comment mechanism. So paradoxically, any concerted Trump moves on his showcase “one-in, two-out” approach to deregulating and leveling the regulatory mountains that has arisen decades before could conceivably require him to fatten the Register to some extent.

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It’s more complicated than that of course. For example, many rules and guidance documents were issued under both Trump and Biden relating to the Covid-19 response that would not otherwise have been part of the picture. That was the elephant (and donkey) in the room during Trump’s last year. Still, Trump had ample regulatory impulses of his own (see the 2021 edition of Ten Thousand Commandments for details).

Biden’s fattened Federal Register page count comes without a pandemic rationalization, and reaffirms his pro-regulatory stance. In the entire history of the compilation, only Obama posted Federal Register page counts unapologetically exceeding 80,000 pages. Such heights are well above the 73,000 under president Jimmy Carter that played a role in inspring reforms once upon a time. But Biden appears more than compfortable with that.

As for the thousands of final rules and regulations contained in the Federal Register, those are depicted in the table above as well. Biden closed out the year with 3,168 rules (again preliminary), having apparently finished 2021 with a whopping 4,429.

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Under Trump, there had been a substantial reduction in rulemaking, with 2019 bringing the count down to 2,964 final rules, the lowest tally since records started being kept in the mid-1970s. (That there are few records from before is itself notable and concerning, since the early days of progressivism its creation of the alphabet soup three- and four-letter agencies contributed to the foundational unaccountability and free range the regulatory state enjoys now.)

Even Trump’s bloated final Federal Register of 2020 contained a low rule count compared to everything else one observes historically (”only” 3,038 rules). Back in the 1990s there were regularly over 4,000 rules issued each year, and counts were still higher in the 70s and 80s (hitting an incredible 7,745 in 1980).

Ir remains to be seen, but Biden may be bringing back the practice of issuing over 4,000 rules every year. His rule count of 3,168 at the end of 2022 could turn out to be more (or less, but not likely), due to occasional discrepancies between what the Federal Register database depicts compared to the National Archives repository of historical Federal Register statistics (these helpful presentations call to mind the historical tables for the federal budget.

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Even as of today, the online Federal Register database registers 3,257 rules for 2021 (a year ago). which was the sum depicted in the 2022 Ten Thousand Commandments. But there now appear instead, as noted above, 4,429 rules in the historical statistics repository maintained by the National Archives (go here for more of the story).

The point is, 2022 could be an undercount as well. Another wrinkle is that even the archival, less-recent historical data can sometimes inexplicably change. For example, the 3,038 rules of Trump in 2020 have been noted; per the online database, however (superceded by the historical tables), the figure remains depicted as 3,353 (as of now, but watch out), seemingly ascribing more rules to Trump than he may actually have had. In any event, we know his “net” was somewhat lower for all years of his term given the “Deregulatory” mission. This is a fluid situation to monitor (I do so in Ten Thousand Commandments, but it should be policymakers resolving the matter.)

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Biden’s regulatory issue is imbued with no such streamlining purpose, and that becomes apparent when looking more deeply at the costlier subset of rules known as “signfiicant” and “economically significant,” as well as at rules affecting small business. These sorts of rules are mounting a comeback under Biden. Of Biden’s 3,168 rules completed 2022, 257 were deemed “significant” by agencies and the Office of Management and Budget (while 906 rules overall affect small business). Biden issued 387 rules in 2021. Trump’s highest count by contrast was 214, and his significant rule count was below 80 twice during his term. These significant rule counts are apt to rise as the chickens come home to roost on the various legislative enactments of the past three years on the likes of infrastructure, inflation and “innovation.”

Regulatory activism is back and significant rule counts are likely back at Bush/Obama levels to stay. There are deeper dives on the Biden program to be made, such as the trajectory of proposed rules and guidance documents and policy statements under Biden’s executive activism; but as it happens, the Unifed Agenda of Federal Regulatory and Deregulatory Actions wherein agencies would be presenting their priorities is inexplicably delayed.

We have pointed for many years at the well-known problems with using Federal Register pages and even rule counts as a gauge of the extent of regulation. Given that there have been endless opportunities to remedy obtuseness and improve transparency, murkiness is a feature rather than a bug of the administrative state. Those making a career of writing regulations that cannot be measured and for which they cannot be held accountable benefit. Again, this is a situation Congress should address in a broader campaign for regulatory reform, such as the Competitive Enterprise Institute’s (yep that’s my organzation) own “Free to Prosper” Agenda for lawmakers.

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It would be a welcome change to see steps to improve improve disclosure gain a footing in the 118^th Congress this New Year. Biden will not be amenable to reforms, but a future executive branch may be. Therefore policymakers should be constructing templates for executive actions more aggressive than Trump’s as well as actionable legislation on regulatory streamlining (particularly with respect to agency guidance documents) and mandatory disclosures of regulatory burdens (including those imposed by independent agencies that now escape scrutiny). Options range from a specialized office chartered to counter regulatory orthodoxy and the pretense of “market failure” at every juncture, to a regulatory budget, to forcing Congress to approve significant or controversial rules before they bind anyone. Thirteen-point plans and the like should become the order of the day.

Substantial pressure should be brought to bear on the Biden administration’s regulatory regime as 2023 kicks off. The nation’s economic footing needs strengthening, particularly given that we have been warned yet again by COVID of politicians’ eternal propensity to exploit economic and health crisis to expand their power. If another crisis hits during the term of an already untethered Biden, there’s no limit to the “resets” and interventions the left will seize the moment to exploit — unless brought to heel ahead of time.

Otherwise, Joe Biden appears on track to have a Happier New Year in regulation than the depressing one coming the way of the regulated.