10,000 Commandments? Is That All?

Clyde Wayne Crews, known for titling his reports on the regulatory state as 10,000 Commandments takes a look at President Biden's recent flurry of regulatory activity.

One highlight is the President's blatant attempt to sneak in many costly new regulations by doubling the dollar cost criterion at which they will be flagged as "significant:"

Rooted in a Clinton-era executive order which until recently showcased $100 million "economically significant" rules, the S3F1 designation under Biden now instead refers to rules attaining a threshold of $200 million in annual economic effects. Now, lesser rules costing "only" $100 million or deemed significant due to certain other non-cost characteristics can fly under the radar.

This is a "significant" development to coin a term since, in a January 2024 compilation, I inventoried fully 232 S3F1 work-in-process rules in the pre-rule, proposed and final stages. The implication of Biden's threshold change is that there are likely more costly rules in the pipeline below $200 million but above the old $100 million threshold that do not get the attention they deserve. [bold added]

This is in addition to there being an enormous raw number of new rules: At one point, Crews notes that "At the current clip, however, the 2024 Federal Register will top 100,000 pages, taking us closer to [a] million-pages-per-decade..." (!)

A second highlight comes from the unsurprising fact that Biden is trying to "Trump proof" his agenda, should he fail to get reelected. This the President hopes to achieve by ramming the changes through quickly, reflecting the weakness of a law that was supposed to give Congress more control over more onerous regulations:

[T]hings have to align just so to roll back rules using the Congressional Review Act. The CRA has undone fewer than two dozen rules since its enactment in 1996. Most of those occurred under Trump, whose administration overturned too-late Obama rules. Biden's team, who also overturned late-issued Trump deregulatory actions in precisely that fashion, has clearly learned the game and is ensuring that the largest of rules are landing in the Federal Register now to keep them protected from RODs. [bold added]

And finally, we have Crews's recommendation for how to remedy the shortcomings of the CRA:

Image by the United States Federal Government, via Wikimedia Commons, public domain.

As for the CRA, while it did represent one of the most important affirmations of congressional accountabiltiy for rulemaking, it has never been quite the right tool; that tool will be legislation instead assuring that no major or controversial rule can be effective unless Congress votes to affirm it, as opposed to the current situation requiring Congress to get up on its hind legs to block odious ones. The current version of such a law is called "Regulations from the Executive in Need of Scrutiny," or REINS Act; but a better moniker was the predecessor Congressional Responsibility Act, and the acronym could stay the same.

Although I can't imagine either of today's big government parties taking up this idea, it would be better than the alternative of doing nothing, and might buy us more time to lay the cultural groundwork necessary for abolition of the regulatory state to transition from the realm of the pipe dream to something on display in the Overton Window.

-- CAV