The Administrative State
In one recent year alone, Congress passed 138 laws—while federal agencies finalized 2,926 rules. Federal judges conduct about 95,000 trials a year, but federal agencies conduct nearly 1 million. Put all that together and you have a situation in which one branch of government, the executive, is arrogating to itself the powers of the other two.
This probably understates the case. Most of the laws were probably brief fixes or extensions or for national _____ day declarations. The administrative rules can be thousands of pages long and create nightmarish compliance issues. Already, most of our businesses compliance efforts (which seem to be rising exponentially in time and cost) are due to administrative rules changes rather than new laws per se.
I find the judicial issue potentially even more concerning. While we have pretty well-protected due process rights in court, most of these get tossed aside in administrative hearings and trials.
Daublin:
The judicial issue is important, but also seems like an inevitable consequence of the sheer number of rules floating around. So I would say the other issue is the more fundamental one.
Given the quoted number of 1 million rules questions per year (in federal agencies alone...), it would be impractical to hold a full trial with proper due process around it. Instead, you just have to have a first-tier approach that is usually correct, with the courts available as a fallback if the first-tier ruling is sufficiently bad and costly that it's worth litigating over.
The root problem is simply having to check in with the government on so very many issues. There are a great many issues with such an arrangement.
March 29, 2016, 10:59 amMatthew Slyfield:
"In one recent year alone, Congress passed 138 laws—while federal agencies finalized 2,926 rules."
Yes, and the number of old laws / agency rules that were repealed: zero
March 29, 2016, 11:17 amJim Collins:
If it can deprive someone of their freedom, their property or their wealth, it needs to be a law, not a regulation.
Why is it that almost every Federal Agency needs their own SWAT team? Simple. They are the only agency that has the "authority" to enforce their regulations.
March 29, 2016, 1:58 pmMatthew Slyfield:
Actually, no, that's not why.
The real reason: Federal employees with Law Enforcement power get paid more, a lot more and they get more generous pensions.
US Forrest Service Rangers carry guns, Not for protection from wild life, but because they are certified as Law Enforcement, complete with arrest powers.
March 29, 2016, 3:27 pmCraig Loehle:
An additional problem is an inability for anyone, even a lawyer, to know what is forbidden or how to comply. No human can keep track of 1000 rules, never mind 100,000. It is simply impossible. The rules should always allow a warning on the first offense or a small fine for paperwork violations, but instead are often draconian. For example, if a homeowner accidentally fills in part of their lot that the EPA decides is a wetland, they must instantly reclaim it or face tens of thousands of dollars in fines PER DAY.
March 30, 2016, 6:05 amJ K Brown:
Ah, from a simpler time, 1887:
The writer of this article has for several years been occupied with a work which involved careful study and comparison of all the statute books of the United States. And the statutes, however contemptuously the court of law regard them, are after all on the utterance of the people's will. They are the direct speech of the "One who has authority."
How quaint that one person early in their life could give careful study to all the statute books, federal and state.
This gives rise to my favorite complex sentence by the same author, but then so it the situation being described and that was a century ago:
But no one, I think, has ever called attention to the enormous differences in living, in business, in political temper between the days (which practically lasted until the last century) when a citizen, a merchant, an employer of labor, or a laboring man, still more a corporation or association and lastly, a man even in his most intimate relations, the husband and the father, well knew the law as familiar law, a law with which he had grown up, and to which he had adapted his life, his marriage, the education of his children, his business career and his entrance into public life -- and these days of to-day, when all those doing business under a corporate firm primarily, but also those doing business at all; all owners of property, all employers of labor, all bankers or manufacturers or consumers; all citizens, in their gravest and their least actions, also must look into their newspapers every morning to make sure that the whole law of life has not been changed for them by a statute passed overnight; when not only no lawyer may maintain an office without the most recent day-by-day bulletins on legislation, but may not advise on the simplest proposition of marriage or divorce, of a wife's share in a husband's property, of her freedom of contract, without sending not only to his own State legislature, but for the most recent statute of any other State which may have a bearing on the situation.
--Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute, Frederic J. Stimson (1910)
March 30, 2016, 9:36 pmJ K Brown:
English common law worked from the idea that the law was known. Judges simply determined what was the law from historical custom.
How many of us have ever formulated in our minds what law means? I am inclined to think that the most would give a meaning that was never the meaning of the word law, at least until a very few years ago; that is, the meaning which alone is the subject of this book, statute law. The notion of law as a statute, a thing passed by a legislature, a thing enacted, made new by representative assembly, is perfectly modem, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have assumed in our minds the main bulk of the concept of law as we formulate it to ourselves. I guess that the ordinary newspaper reader, when he talks about ‘laws" or reads about "law," thinks of statutes; but that is a perfectly modem concept; and the thing itself, even as we now understand it, is perfectly modem. There were no statutes within the present meaning of the word more than a very few centuries ago
Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute
by Frederic Jesup Stimson (1910)
The rapid rise of statute law is a recent invention just two centuries old really.
Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of "isms" and reforms — full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States — the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow.
March 30, 2016, 9:42 pmano333:
Why is it a problem that federal agencies are making rules? This is just a consequence of having one branch make the laws while another branch enforces those laws. If the executive branch did not make the rules (which really are just the nuts and bolts issues that further enforcement of the laws passed by Congress), then Congress itself would have to.
Unless you think Congress can just pass a simple law that is so clear no one needs to explicate rules of enforcement...
April 1, 2016, 4:17 am