One Nation, Ungovernable? Confronting the Modern Regulatory State

Abstract

The modern conceit is that administrative regulation and rule making work. Overreach by bureaucracy and the administrative state may not only impede economic efficiency but also undermine health, safety, and environmental progress. Healthy government requires recognizing downsides to coercive intervention; it requires vigilant legislative and executive institutions and mindsets that seek reasons not to add yet another rule or decree to the existing tens of thousands. Meanwhile the public has a right to know the ways federal agencies have harmed and harm that which they oversee, and how those negatives may propagate beyond the agency throughout the economy and society. Part 2 points to some economic and social consequences of the unrestrained modern government, and takes a moment to recognize (or perhaps lament) that, while the Constitution is not coming to the rescue, we are not without options. Part 3, in light of Congress’ over-delegation of power to federal agencies, briefly reviews the formal oversight procedures that ostensibly exist for the thousands of regulations issuing annually. Part 4 shows that central oversight of regulation sports theoretical inconsistencies and gaps and argues it has not worked, but posits why, just possibly, it could. Part 5 presents the data demonstrating that federal regulatory review has fallen short and is far from comprehensive. Part 6 covers some of what is (imperfectly) known about regulatory burdens and volume to help inform efforts to liberalize. Finally, Part 7—given the reality that code or administrative agency law is here to stay for the time being—offers disclosure-based “low-hanging-fruit” reform proposals, while remaining cognizant of central review’s shortcomings.

Keywords: regulation, cost of regulation, regulatory budget, cost of government, fiscal budget

JEL Classification: A10, H10, H11