Ten Thousand Commandments An Annual Snapshot of the Federal Regulatory State 2021 Edition by Clyde Wayne Crews, Jr. Executive Summary Now a relic, spending control and deficit re- spending is projected to decline in the new straint are indispensable to a nation’s stability 2021 fiscal year and for a short time beyond, and long-term economic health. What little the Congressional Budget Office puts outlays alarm arose over lack of spending restraint beyond the $7 trillion level before the end of under President Donald Trump’s adminis- the decade. The national debt now stands at tration, even with the benefit of a healthy $27.8 trillion.5 It was slightly under $20 tril- economy, never stemmed disbursements.1 lion when Trump took office just over four Fiscal conservatives long ago lost the appe- years ago. tite for addressing spending.2 Even before the rocketing spending generated by the coro- As imposing as all that is, the cost of govern- navirus outbreak, spending on debt service ment extends even beyond what Washington threatened to rival the entire defense bud- collects in taxes and the far greater amount get, especially as interest rates rise.3 Mean- it spends. Federal environmental, safety while, COVID-19 has only escalated magical and health, and economic regulations and thinking that government outlays create interventions affect the economy by hun- wealth. Today’s mantra is, “When you run dreds of billions—even trillions—of dollars out of other people’s money, keep spending annually. This situation has been aggravated anyway.” by COVID-19. Unlike on-budget spend- ing, regulatory costs and burdens caused This year, the Congressional Budget Office’s by government are largely obscured from January 2021 Budget and Economic Outlook, public view and operate like a hidden tax.6 covering 2021 to 2031, shows discretionary, As the least disciplined aspect of govern- entitlement, and interest spending of $6.552 ment activity, regulation can be appealing to trillion in FY 2020 (up from $4.4 trillion lawmakers. Budgetary pressures can incentiv- last year), with an unprecedented COVID- ize lawmakers to impose off-budget regula- induced deficit of $3,132 trillion.4 While tions on the private sector rather than add to Crews: Ten Thousand Commandments 2021 1 unpopular deficit spending. A government access, education, health care,13 agricultural child care or job training initiative could biotechnology, and more (see Box 1). involve either increasing government spend- ing or imposing new regulations that require Since the federal government heavily influ- businesses to provide those benefits. Just as ences society through regulation as well as firms generally pass the costs of some taxes spending, lawmakers should thoroughly along to consumers, some regulatory compli- track and disclose regulatory costs and per- ance costs and mandates borne by businesses form periodic housecleaning. The limited will percolate throughout the economy, cost–benefit analysis currently undertaken finding their way into consumer prices and by agencies relies largely on agency self- workers’ wages.7 reporting, covers only a fraction of rules, and omits vast categories of intervention.14 When the U.S. federal administrative state Regulators can be reluctant to acknowledge began its growth a century ago, few likely when a rule’s benefits do not justify its costs, imagined the tangle of rules it would yield particularly when explicitly encouraged to and how those would envelop the economy amplify benefits and downplay costs.15 In and society. Over several decades, rules have fact, one could and should expect agencies to accumulated year after year with little re- devise new and suspect categories of benefits trenchment. Over the past four years, there to justify rulemaking when so incentivized.16 were some reversals in this regard, such as a slowdown in the issuing of new rules and The regulatory impulse is largely driven by Regulators can some rollbacks of existing ones, but there re- Congress’ longstanding delegation of its law- main reasons for concern. making power to executive branch regulatory be reluctant to agencies, and by its overbroad assumption of One of the Trump administration’s first di- lawmaking power over citizens’ lives in the acknowledge rectives was a memorandum to executive first instance. Addressing that situation ef- branch agencies titled “Regulatory Freeze fectively will require the restoration of Con- when a rule’s Pending Review.”8 Presidents routinely take gress’ duties and confines under Article I of benefits do not similar steps to review predecessors’ pend- the Constitution rather than mere adminis- ing actions and prioritize their own.9 Biden trative law reforms. That change could take justify its costs. proved no different, but he went further the form of requiring congressional votes on in singling out dozens of rules for review.10 significant or controversial agency rules be- Regulations published in the Federal Register fore they become binding. Getting lawmak- with effective dates preceding Biden’s arrival ers on the record as supporting or opposing would not be available to freeze but could specific rules would help reestablish congres- still be overturned via Congress’ use of the sional accountability and affirm a principle Congressional Review Act.11 The Trump ad- of “no regulation without representation.”17 ministration went further in issuing a series of actions related to general regulatory pro- Federal regulatory transparency report cards, cess reform, pursuing reform of the execu- similar to the presentation in Ten Thousand tive branch itself, and streamlining internal Commandments, could be issued each year agency processes and timeliness of regulatory to distill information for the public and approvals. Some of Trump’s executive ac- policy makers about the scope of the regu- tions during his term went the other way by latory state.18 Scattered government and imposing burdens; among them were trade private data exist on the number of regula- restrictions, anti-dumping, “buy American” tions issued by agencies and their costs and agendas, and more.12 Nonetheless, the exten- effects. Improving and compiling some of sive executive actions aimed at liberalization that information can shed light on the scope were both broad-based and sector-specific to of the federal regulatory enterprise. That goal areas such as financial regulation, antiquities is central to the annual Ten Thousand Com- and national monuments, offshore resource mandments report. 2 Crews: Ten Thousand Commandments 2021 Box 1. Prominent Executive Actions on Regulatory Process Reform during Trump’s Term 2017 2019 • Presidential Memorandum, Streamlining Permitting and • Executive Order 13855, Promoting Active Management of Reducing Regulatory Burdens for Domestic Manufacturing, America’s Forests, Rangelands, and Other Federal Lands to January 24, 2017.19 Improve Conditions and Reduce Wildfire Risk, December • Executive Order 13766, Expediting Environmental Reviews 21, 2018.38 and Approvals for High Priority Infrastructure Projects, • Executive Order 13891, Promoting the Rule of Law January 24, 2017.20 through Improved Agency Guidance Documents, October • Executive Order 13771, Reducing Regulation and Control- 9, 2019.39 ling Regulatory Costs, January 30, 2017.21 • Executive Order 13892, Promoting the Rule of Law • Executive Order 13772, Core Principles for Regulating the through Transparency and Fairness in Civil Administrative United States Financial System, February 8, 2017.22 Enforcement and Adjudication, October 9, 2019.40 • Executive Order 13777, Enforcing the Regulatory Reform • Executive Order 13879, Advancing American Kidney Agenda, February 24, 2017.23 Health, July 10, 2019.41 • Executive Order 13781, Comprehensive Plan for • Executive Order 13878, Establishing a White House Reorganizing the Executive Branch, March 13, 2017.24 Council on Eliminating Regulatory Barriers to Affordable • Executive Order 13789, Identifying and Reducing Tax Housing, June 25, 2019.42 Regulatory Burdens, April 21, 2017.25 • Executive Order 13874, Modernizing the Regulatory • Executive Order 13790, Promoting Agriculture and Rural Framework for Agricultural Biotechnology Products, June Prosperity in America, April 25, 2017.26 11, 2019.43 • Executive Order 13792, Review of Designations under the • Executive Order 13868, Promoting Energy Infrastructure Antiquities Act, April 26, 2017.27 and Economic Growth, April 10, 2019.44 • Executive Order 13791, Enforcing Statutory Prohibitions on Federal Control of Education, April 26, 2017.28 2020 • Executive Order 13795, Implementing an America-First • Executive Order 13969, Expanding Educational Opportu- Offshore Energy Strategy, April 28, 2017.29 nity through School Choice, December 28, 2020.45 • Executive Order 13807, Establishing Discipline and Ac- • Executive Order 13914, Encouraging International Support countability in the Environmental Review and Permitting for the Recovery and Use of Space Resources, April 6, Process for Infrastructure Projects, August 15, 2017.30 2020.46 • Executive Order 13813, Promoting Healthcare Choice and • Executive Order 13924, Regulatory Relief to Support Competition across the United States, October 12, 2017.31 Economic Recovery, May 19, 2020.47 • Executive Order 13927, Accelerating the Nation’s 2018 Economic Recovery from the COVID-19 Emergency by • Presidential Memorandum, Memorandum for the Secre- Expediting Infrastructure Investments and Other Activities, tary of the Interior: Supporting