Ten Thousand Commandments An Annual Snapshot of the Federal Regulatory State 2020 Edition by Clyde Wayne Crews, Jr. Executive Summary Spending control and deficit restraint are in- ing above $5 trillion by FY 2022, and nearly dispensable to a nation’s stability and long- $7.5 trillion by 2030.5 The national debt term economic health. Yet alarm over lack of now stands at $23.2 trillion, up more than spending restraint under President Donald $2 trillion since 2018.6 Trump’s administration, even with the ben - efit of a healthy economy, has not stemmed As imposing as that is, the cost of govern- disbursements.1 Without significant changes, ment extends even beyond what Washington more will soon be spent on debt service than collects in taxes and the far greater amount on the entire defense budget, especially as in- it spends. Federal environmental, safety and terest rates rise.2 Meanwhile, magical think- health, and economic regulations and inter- ing that government outlays create wealth is ventions affect the economy by hundreds of now fashionable among emboldened progres- billions—even trillions—of dollars annu- sives who advocate Medicare for All, a Green ally. These regulatory burdens can operate New Deal, and a guaranteed national income, as a hidden tax.7 Unlike on-budget spend- while supposed fiscal conservatives have lost ing, regulatory costs caused by government the appetite for addressing spending.3 are largely obscured from public view. As the least disciplined aspect of government In March 2019, the White House budget activity, regulation can be appealing to law- proposal requested $4.746 trillion in outlays makers. Budgetary pressures can incentivize for fiscal year (FY) 2020, with annual spend- lawmakers to impose off-budget regula- ing projected to top $5 trillion in 2022.4 tions on the private sector rather than add to This year, the Congressional Budget Office’s unpopular deficit spending. For example, a January 2020 Budget and Economic Outlook, government job training or child care initia- covering 2020 to 2030, shows discretionary, tive could involve either increasing govern- entitlement, and interest spending exceeded ment spending or imposing new regulations $4.4 trillion in FY 2019 and projects spend- that require businesses to provide those ben- Crews: Ten Thousand Commandments 2020 1 efits. Just as firms generally pass the costs of only a fraction of rules.13 Regulators are re- some taxes along to consumers, some regula- luctant to acknowledge when a rule’s benefits tory compliance costs and mandates borne do not justify its costs. In fact, one could ex- by businesses will percolate throughout the pect agencies to devise new and suspect cat- economy, finding their way into consumer egories of benefits to justify rulemaking.14 prices and workers’ wages.8 Excess regulation is largely driven by the When the U.S. federal administrative state longstanding delegation by Congress of began its growth a century ago, few likely its rightful lawmaking power to executive imagined the tangle of rules it would yield branch regulatory agencies. Addressing that and how those would envelop the economy situation effectively will require the restora- and society. Over several decades, rules have tion of Congress’ duties under Article I of accumulated year after year with little re- the Constitution rather than “mere” adminis- trenchment. Over the past three years, there trative law reforms. This could take the form have been some reversals in this regard, such of congressional votes on significant or con- as a slowdown in the issuing of new rules troversial agency rules before they become and some rollbacks of existing ones, but binding. Getting lawmakers on the record as there remain reasons for concern. supporting or opposing specific rules would reestablish congressional accountability and One of the Trump administration’s first di- affirm a principle of “no regulation without rectives was a memorandum to executive representation.”15 branch agencies titled “Regulatory Freeze Pending Review.”9 Presidents routinely take Federal regulatory transparency report cards, similar steps to review predecessors’ pend- similar to the presentation in Ten Thousand ing actions and prioritize their own.10 The Commandments, could be issued each year to president went further in issuing a series of distill information for the public and policy actions related to general regulatory pro- makers about the scope of the regulatory cess reform, reforming the executive branch state.16 Scattered government and private itself, and streamlining internal agency pro- data exist about the number of regulations cesses and timeliness of regulatory approvals issued by agencies and their costs and ef- and removing undue burdens generally. fects. Improving and compiling some of that information can shed light on the scope of Some of Trump’s executive actions since tak- the federal regulatory enterprise. That goal ing office worryingly have gone the other is central to the annual Ten Thousand Com- way, such as emphasizing trade restrictions, mandments report. anti-dumping, “buy American” agendas, and more.11 The extensive executive actions un- The 2020 edition of Ten Thousand Com- dertaken aimed at liberalization have been mandments is the latest in an annual se- both broad-based and sector-specific to areas ries that examines the scope of the federal such as financial regulation, antiquities and regulatory state to help illustrate the need national monuments, offshore resource ac- for measures like regulatory budgeting and cess, education, health care,12 agricultural ultimately congressional accountability. This biotechnology, and more (see Box 1). report contains seven major elements: Since the federal government heavily influ- 1. A bulleted summary of highlights. ences society through regulation as well as 2. An overview of ways the Trump admin- spending, lawmakers should work toward istration has attempted to stem the flow thorough tracking and disclosure of regu- of regulations and roll back old ones. latory costs and perform periodic house- 3. A detailed discussion of Trump’s own cleaning. The limited cost–benefit analysis regulatory impulses—implemented, currently undertaken by agencies relies pending, and potential—that could largely on agency self-reporting and covers undermine his own regulatory effort. 2 Crews: Ten Thousand Commandments 2020 Box 1. Prominent Executive Actions on Regulatory Process Reform during Trump’s First Three Years 2017 • Executive Order 13821, Streamlining and Expedit- • Presidential Memorandum, Streamlining Permitting ing Requests to Locate Broadband Facilities in Rural and Reducing Regulatory Burdens for Domestic America, January 8, 2018.31 Manufacturing, January 24, 2017.17 • Presidential Memorandum, Promoting Domestic • Executive Order 13755, Expediting Environmental Manufacturing and Job Creation—Policies and Pro- Reviews and Approvals for High Priority Infrastruc- cedures Relating to Implementation of Air Quality ture Projects, January 24, 2017.18 Standards, April 12, 2018.32 • Executive Order 13771, Reducing Regulation and • Executive Order 13847, Strengthening Retirement Controlling Regulatory Costs, January 30, 2017.19 Security in America, August 31, 2018.33 • Executive Order 13772, Core Principles for Regulat- • Presidential Memorandum, Promoting the Reliable ing the United States Financial System, February 3, Supply and Delivery of Water in the West, October 2017.20 19, 2018.34 • Executive Order 13777, Enforcing the Regulatory • Presidential Memorandum, Developing a Sustainable Reform Agenda, February 24, 2017.21 Spectrum Strategy for America’s Future, October 25, • Executive Order 13781, Comprehensive Plan for 2018.35 Reorganizing the Executive Branch, March 13, 2017.22 • Executive Order 13777, Identifying and Reducing Tax 2019 Regulatory Burdens, April 21, 2017.23 • Executive Order 13855, Promoting Active Manage- • Executive Order 13790, Promoting Agriculture and ment of America’s Forests, Rangelands, and other Rural Prosperity in America, April 25, 2017.24 Federal Lands to Improve Conditions and Reduce • Executive Order 13792, Review of Designations 36 under the Antiquities Act, April 26, 2017.25 • Executive Order 13891, Promoting the Rule of Law • Executive Order 13791, Enforcing Statutory Prohibi- through Improved Agency Guidance Documents, tions on Federal Control of Education, April 26, 2017.26 October 9, 2019.37 • Executive Order 13795, Implementing an America- • Executive Order 13892, Promoting the Rule of Law First Offshore Energy Strategy, April 28, 2017.27 through Transparency and Fairness in Civil Admin- • Executive Order 13807, Establishing Discipline and istrative Enforcement and Adjudication, October 9, Accountability in the Environmental Review and 2019.38 Permitting Process for Infrastructure Projects, August • Executive Order 13879, Advancing American Kidney 15, 2017.28 Health, July 15, 2019.39 • Executive Order 13813, Promoting Healthcare • Executive Order 13878, Establishing a White House Choice and Competition across the United States, Council on Eliminating Regulatory Barriers to Afford- October 12, 2017.29 able Housing, June 25, 2019.40 • Executive Order 13874, Modernizing the Regulatory 2018 • Presidential Memorandum, Memorandum for the June 11, 2019.41 Secretary of the Interior: Supporting Broadband • Executive Order 13868, Promoting Energy Infrastruc- Tower Facilities in Rural America on Federal Proper- ture and Economic Growth, April 10, 2019.42 ties Managed by the Department