Ten Thousand Commandments 2021: An Annual Snapshot of the Federal Regulatory State

Abstract

Ten Thousand Commandments 2021 surveys the size, scope, and cost of federal regulation and intervention and effects on consumers, businesses, and the U.S. economy at large and otherwise attempts to shine a light on the under-appreciated “hidden tax” of America’s regulatory state. The new edition takes pains to bookend the four years of the Trump administration, documenting in detail the good ("one-in, two-out," etc.) and bad (trade, antitrust, price controls, AI, leave policy, "space force," etc.) from a classical liberal or ordered laissez-faire perspective. It also addresses regulation subtracted and added due to the Covid-19 virus. *Agencies’ stated priorities and “inventories” of rules were warning signs for Trump’s deregulatory agenda all along. While the Trump administration claimed to have met internal goals of implementing a “one-in, two-out” process for federal regulations and freezing costs, the longer horizon signaled agencies poised to reverse course and to issue substantially more regulatory actions than deregulatory ones. That impulse to regulation is unencumbered under Biden’s new executive directives to agencies.Federal government spending, deficits, and the national debt are staggering, but so is the impact of federal regulations. Unfortunately, the financial impact of these rules gets little attention in policy debates because, unlike spending and taxes, they are unbudgeted and impossible to quantify, a condition discussed in detail in the report. That circumstance is the reason cost-benefit analysis (little of which exists regardless) and administrative state excesses must be replaced with congressional accountability for regulatory lawmaking. Steps for more review, transparency, and accountability for new and existing federal regulations are also detailedHighlights from the 2021 edition include:* Apart from sector-specific executive orders and memoranda, the report details seven prominent ways the Trump administration streamlined regulation. Among them, and bookending four years of “one-in, two- out” for federal regulatory actions as prescribed by his Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” the claimed FY 2020 "out/in" ratio was 3.2 to 1 (and 1.3 to 1 if only significant deregulatory actions were counted).* President Trump’s unique regulatory streamlining was offset by his own actions and favorable comments or lob bying for regulatory intervention in the following areas:--Antitrust--Hospital and pharmaceutical price transparency mandates and price controls--Speech and social media content regulation--Private sector privacy regs, encryption, and algorithm regulation--Gov't threats to privacy: amplified databases, biometrics, and surveillance--Online taxes (which are regulatory)--Bipartisan large-scale infrastructure spending with regulatory effects--Trade restrictions--Farm bill and agricultural intervention--Subsidies with regulatory effects--Telecommunications interventions, including for 5G infrastructure--Personal liberties incursions: health tracking, vaping, supplements, and firearms--Financial regulation--Industrial policy in frontier sectors, such as scientific research, artificial intelligence, and the creation of the Space Force--Novel welfare and labor regulations--COVID-related regulation as opposed to deregulation* Given the limited available federal government data and reports, and contemporary studies—and the federal government’s failure to provide a required regularly updated estimate of the aggregate costs of regulation—this report maintains a placeholder for regulatory compliance and effects of federal intervention of $2 trillion annually. It does so for purposes of context and rudimentary comparison with federal spending, debt, GDP, household budgets and other economic metrics. For example, the regulatory hidden “tax” rivals federal individual and corporate income tax receipts combined, whi h totaled $2.076 trillion in 2020 ($1.812 trillion in individual income tax revenues and $264 billion in corporate income tax revenues). Regulatory costs rival corporate pretax profits of $2.237 trillion. Alongside, the report also outlines the vast sweep of intervention and policies for which costs are disregarded and unfathomed.* Calendar year 2020 concluded with 3,353 final rules in the Federal Register, up from 2019’s 2,964 final rules, which was the lowest count since records began being kept in the 1970s and is the only ever tally below 3,000. (In the 1990s and early 2000s, rule counts regularly exceeded 4,000 annually.) An additional 202 Trump administration rules were added between New Year’s Day and Inauguration Day 2021.* During calendar year 2020, while agencies issued those 3,353 rules (some of them deregulatory), Congress enacted “only” 178 laws. Thus, agencies is- sued 19 rules for every law enacted by Congress. This “Unconstitutionality Index”—the ratio of regulations issued by agencies to laws passed by Congress and signed by the president—highlights the entrenched delegation of lawmaking power to unelected agency officials. The average ratio for the previous decade was 28.* In 2017, Trump’s first year, the Fed- eral Register finished at 61,308 pages, the lowest count since 1993 and a 36 percent drop from President Barack Obama’s 95,894 pages, which had been the highest level in history. The 2020 Federal Register tally rose to 86,356 pages, which is the second-highest count ever. However, Trump’s rollbacks of rules—and historically there are still fewer rules overall—also necessarily added to rather than subtract from the Register.* Alongside the 3,353 rules finalized in calendar year 2020, there is also the flow in the pipeline itself to consider. According to the fall 2020 Unified Agenda of Federal Regulatory and Deregulatory Actions, 69 federal departments, agencies, and commissions had 3,852 regulatory actions in the pipeline at various stages of implementation (recently completed, active, and long- term stages). Of the 3,852 rules, 653 had been deemed “Deregulatory” via Trump’s now-defunct Executive Order 13771, This designation has vanished under Biden. Of the 3,852 regulations in the Agenda’s pipeline (completed, active, and long- term stages), 261 were “economically significant” rules, which the federal government describes as having annual economic effects of $100 million or more. Of those 261 rules, 36 were deemed deregulatory for purposes of Trump’s now-cancelled Executive Order 13771.Since 1993, when the first edition of Ten Thousand Commandments was published, agencies have issued 111,065 rules. Since the Federal Register first began itemizing them in 1976, 208,155 final rules have been issued.