Biden furiously rebuilds the administrative state
Proposed significant rules jump by 380 percent in 2021
Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.
Thomas Jefferson, 1819
To many conservatives, Donald Trump was not nearly aggressive as he should have been in cutting regulations and reducing the size and scope of the administrative state, but, in retrospect and in context, the former president now looks like a world champion in deregulation.
Sheer numbers tell the story.
For starters, under George W. Bush, according to an analysis conducted in the summer of 2020 by Keith Belton and John Graham for the Cato Institute, there were 6,999 new regulations put into place during the first two years of his presidency; during its first two years, Obama’s administration enacted 6,793. Under Trump? New regulations fell to 4,310.
The same trend of fewer regulations was evident in the number of significant regulations, too. The Bush administration offered 1,885 significant regulations during the first 24 months, compared to 1,931 for Obama and just 1,027 for Trump.
Now, in numbers presented by the Competitive Enterprise Institute, President Joe Biden is revving up the regulation machine again. In 2021 alone, the Biden administration increased the number of significant rules by 380 percent over the number of significant rules in the final year of Trump’s term.
Perhaps more significantly, during his first two years Trump engaged in 243 deregulatory actions through executive order, while undertaking only 17 regulatory actions through executive order. However, as the Cato analysis points out, that’s a very small number when you consider there are—or were at the time of the analysis—68,846 total regulations adopted in just the previous 24 years.
The analysis observed that the administration had another 514 deregulatory actions in the pipeline, much larger than what the Reagan administration had tackled under a similar initiative. Still, it was obvious that the administrative state was chugging on even under Trump, just at a much slower pace.
In sum, it is perhaps more accurate to say the Trump administration was a non-regulatory one as opposed to a regulatory or deregulatory one. That peeved many deregulatory conservatives who had hoped for much more, given that Trump had made deregulation a centerpiece of his presidential campaign.
None of which is to say Trump wasn’t trying to do just what he promised. The important thing to remember is that he was battling the huge administrative state, which had long before Trump taken on a life of its own and was churning out regulations faster than Trump and his team could whittle them down.
As I wrote in The New Bossism of the American Left, the bureaucracy rules, with its rules.
It independently regulates and controls significant portions of everyday life, from Internet protocols to nutrition standards to dust on farms to the use of puddles and ponds on private property to urban and rural development and highway access. (At this very moment, the Biden bureaucracy is bringing back an effort to regulate and take federal control of virtually all water bodies in the U.S.) It lathers the media with meaty subsidies to vocalize its priorities. If Congress writes a law that doesn’t fit the agenda, it writes a rule to overturn it, an infallible exercise given Congress’s limited passive rule review process. If the president writes an executive order, as is increasingly the case, and the bureaucracy doesn’t like it, as was the case with Trump, it ignores it. And though sometimes the president can win by using his bully pulpit, increasingly the bureaucracy gets its way.
It’s the robot that took control of the humans. Stephen Hawking worried about artificial intelligence seizing control of us; but it’s the phony intelligence of the administrative state that’s really hijacked the human life and mind in America.
The bureaucracy rules, with its rules.
Not that the former president didn’t try. On the day of his inauguration, Trump had his chief of staff send a memo to all executive agencies ordering them to halt the promulgation of all rules, save for those relating to health, safety, financial, or national security matters, until the administration reviewed and approved the regulation. In that first year, he withdrew rules ranging from the Clean Power Plan to an EPA rule limiting mercury discharges from dentists to DOE energy efficiency standards for federal buildings to, significantly, the proposed Waters of the U.S. rule.
Perhaps most important, Trump signed an executive order creating a one in-two out policy for regulatory action, meaning that for every new regulation enacted, two had to be jettisoned. That policy had previously been employed in Great Britain.
An idea long favored by conservative theorists but never considered seriously by any Republican administration also came to pass during Trump’s term: regulatory budgeting. That means agencies had to calculate the costs and benefits of each proposed rule. When the cost of compliance equaled the calculated benefits on the other side, the total cost was considered zero. Trump’s executive order required agencies to use regulatory budgeting by 2018 and to end the year with a regulatory budget of zero.
Even with all that, the regulatory agencies somehow kept on regulating. The bureaucracy ruled, with its rules. As might have been expected, agencies were all too adept at manipulating regulatory budgeting to show zero costs, and they kept spewing out new proposed regulations like a chimney belches smoke. Between inauguration day on January 20, 2017, and May 20, 2017—the first four months of Trump’s term—563 new regulations were proposed by various agencies.
That number had grown to 1,556 by November 1 of 2017, causing deregulatory conservatives to grumble.
But those conservatives are likely wishing for the good old days of Trump right now. Regulatory agencies wasted no time getting back to business as usual as soon as Biden took office. Between the same dates as the new Trump administration proposed 563 new rules—January 20-May 20—the new Biden administration proposed 795 rules, an increase of 41 percent.
That settled down a bit but still the uncaged agencies have been flourishing once more, issuing 1,933 new regulations between January 20 and November 1, 2021, an increase of 24 percent over the Trump administration during the same dates.
But that’s just the tip of the iceberg, as Joe Biden has unleashed the administrative state on all fronts.