Imagine that this asterisk is a unit of legislation: *

This would be the amount of legislation produced by the United States legislative branch, Congress (i.e., the Senate and House of Representatives), and signed into law by President Obama (in the executive branch) in 2013. This represents about 800 pages of the Federal Register where such laws are recorded. That’s the way our system was designed: the legislative branch creates legislation, the executive branch signs it into law or vetoes it, and that was how laws were to come into being.

Now compare that single unit with the laws that were created by the executive branch on its own without involving Congress:


[Edit: I had misstated the pages in the Federal Register by a factor of ten. The reality is quite bad enough! Thanks to Marmoe for the corrective note, and I will see exactly what the original source was referring to.)

This is one hundred units, or 80,000 pages of new regulations in 2013, created by the branch of government that has no authority to create laws at all. These regulations, a thousand times the output of the legislative branch, have the full force of law complete with penalties involving fines and/or jail time. Some are based on laws created by Congress, with the theoretical notion of being created to flesh them out and give them enough detail to be enforceable. (As if 1,000- and 2,000- page bills were not detailed.) Quite often, these laws are created in spite of and in direct challenge to existing legislation.

In the view of the army of faceless, unelected bureaucrats of the executive branch that create these orders under the direction of President Obama, a 2,000 page bill is NOT detailed enough. About 100,000 pages of regulations have been created so far just pertaining to two bills passed in the space of a few weeks in 2010: Obamacare (technically the Patient Protection and Affordable Care Act of 2010) and Dodd-Frank (technically Obama’s Gift to Wall Street Cronies).

LegislationAlso a frequent occurrence in this invisible-lawmaking process is regulation to funnel billions of dollars to Democrat cronies, donors, donation  bundlers and launderers, and supporting organizations. Occasionally there are objections to this; most of the time these are simply buried in gigantic, impenetrable regulations that no one has ever read the entirety of.

Bureaucracy “Poisons the Blessings of Liberty”

James Madison warned of this at some length in Federalist #62, when he spoke of how the Congress was to be composed and to operate:

The internal effects of a mutable [i.e. uncertain, changeable] policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

He was certainly correct here, but did not anticipate what would happen much later. Madison and the other framers of the Constitution went to much effort to restrict the lawmaking process of the legislative branch, forcing it to be more thoughtful and methodical. But they did not anticipate that the executive branch would simply do an end-run around the legislators and create and enact what is now more than 99.9% of the legislative language.

While the concept is certainly not new to Obama, under him the legislative bureaucracy and its output has “necessarily skyrocketed.” And there is a subtlety here: Even when a Republican is nominally in charge of the executive branch, the vast bureaucracy is still overwhelmingly Democrat, the party of big government. For example, when Bush appointed Republican Condolezza Rice to be Secretary of State, they despised her and worked against her, and against US interests, at every turn. Bureaucrats write regulations to dole out the goodies to Democrats, who appoint more bureaucrats and give them bigger budgets and greater power. They were much happier with the “squishy” Colin Powell.

The Practical Effect

Madison went on:

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.

In other words, cronyism, at the expense of and to the detriment of the public. Cronyism, often called crony capitalism, is essentially the opposite of free enterprise. In free enterprise, the market determines winners and losers by how well they please their customers. Instead, crony businesses are elevated to success (or at least, government largess for a little while) due to their connections and lobbying and handing money to the right causes. Often businesses are created for no other purpose; this has been true of a number of Obama beneficiaries.

The rest of the business community is fearful of substantial investment, as even if Congress can now stop the creation of harmful new legislation (and this Congress cannot be trusted to that end), the bureaucrats are still unrestrained, and still cranking out new language with unguessable harm to the businesses and the welfare of the American people. As a result, businesses are now dying faster than are being created for the first time since we began tracking this.

Too Rigged to Fail

But bureaucracies cannot fail until the government does. Oh, certainly, they can do a lousy job, fail to accomplish the mission, massively overspend their allocated budgets, and harm or even kill the clients they were supposed to serve. Any of these would cause a free-enterprise business to rapidly correct its behavior or to go out of business.But bureaucracies guilty of any or all of these things simply use the failure as evidence for more budget, more staff, more power, and more regulation.

You can probably think of examples of this off the top of your head: the Veterans Administration, Border Patrol, the Secret Service have all been in the news recently for colossal failures, and of course immediately demanded larger budgets. And got them. But the reality is that this effect permeates all of government; it is the behavior the system is rigged to produce. And when you incentivize bad behavior, you can hardly be surprised at the result.

Regulation and Pre-Regulation

Among the new regulations about to hit, which are making a bit of splash on the Internet, are proposed Federal Communications Commission regulations to restrict Internet activity (to be enacted this week with no public review) and new Federal Election Commission rules to place blogs like mine until government restrictions:

FEC Chairman Lee E. Goodman, a Republican, said if regulation extends that far, then anybody who writes a political blog, runs a politically active news site or even chat room could be regulated. He added that funny Internet campaigns like “Obama Girl,” and “Jib Jab” would also face regulations.

These are merely bits that became visible. The FCC “vote” referred to in the first article linked above means that the three Democrats will outvote the two Republicans on the FCC, and the new rules will be law. Then the almost entirely Democrat bureaucrats will go to work expanding their reach. They have to add massively to this new little seed law, as it’s only 332 pages as is.

But in the meantime, even the fraction of new regulations that the public is allowed to comment on is still of impressive size. As of this writing, there are 89 new regulations whose comment period ends today. This is not 89 pages, it’s 89 new laws, each of which is typically many pages long.

And some regulations are drafted in accord with policy recommendations from various agencies, commissions, and panels. One such panel in the news recently is the Dietary Guidelines Advisory Committee, part of the US Department of Agriculture.

Gaming the System

It is a system ripe for gaming, and those that game this system for a living make billions of dollars for their efforts. They erect barriers against their clients’ competitors or against businesses that they don’t like, lining the pockets of lawyers, and restricting the choices that drove this country to be a one-time giant of innovation.

We can no longer afford to innovate; the legal risks are too high. Instead, we do almost all of our innovation, if you can call it that, through regulatory language. And every day, non-governmental organizations, lobbyists, and interest groups meet secretly with the bureaucrats and hand them already prepared packages of regulations. These outsiders do not just “watch the change, and trace its consequences” as Madison warned of, they are creating these changes that do so very much harm to this country.

So how do we fix it?

==============/ Keith DeHavelle