By: The Editorial Board – wsj.com – February 27, 2023

President Biden is leading an unprecedented expansion of the administrative state. In two years his Administration has imposed 517 regulatory actions with some $318 billion in total costs. By the same point in his Administration, President Obama had imposed 740 comparable rules with a cost of $208 billion. Across four years President Trump imposed 1,340 rules at a cost of $64.7 billion.

These figures come from the American Action Forum, which says that in 2022 alone federal agencies finalized 264 regulations with economic impact, totting up $117.1 billion in net regulatory costs. Another 311 proposed rules are in the pipeline and would cost $191.2 billion when final. Twenty-three of those rules will cost $1 billion each.

Regulatory costs to the economy are now reckoned to be at least $2 trillion, or roughly 8% of U.S. gross domestic product in 2021, according to Wayne Crewsat the Competitive Enterprise Institute. If you think of regulation as a tax, Mr. Crews notes, it would be larger than the federal income tax and come out to around $14,684 per family. If the cost of U.S. regulation were a country, it would rank a little behind France’s GDP.

Regulators are now in high gear as they write rules to implement the gusher of legislation from the last Democratic Congress. But they are also hard at work imposing new rules by rewriting old statutes to impose policies they can’t get through Congress.

A glance at the regulation tracker by the Brookings Institution is bracing. Rule-makings in various stages of the pipeline cover everything from “phasedown of hydrofluorocarbons” (EPA) to “climate-related disclosures for public companies” (SEC), “rule to reduce robocalls” (FCC), “lowering the cost of federal student loan payments” (Education), “menthol cigarette ban” (FDA, HHS) and “sex discrimination in schools” (Education). And much more.

Looking at the overall rule count is even worse. The Constitution grants the power to make laws to Congress, not agencies. But in calendar 2021, Mr. Crews notes, agencies issued 3,257 rules, including 105 last-minute Trump rules, while Congress passed 143 laws. Last year they added another 3,168 rules in the Federal Register to go with 247 laws passed by Congress. That’s 13 rules from unelected agencies for every one law from elected legislators.

In his first days in office, Mr. Biden revoked Trump Administration executive orders designed to temper the regulatory state. One Trump order to reduce regulation (nicknamed “one in, two out”) required that for every new regulation from the executive branch, two were eliminated. Mr. Biden repealed it.

Also axed was a Trump executive order requiring agencies to make “guidance” documents available to taxpayers on public portals. The hope was for a little sunlight on the opaque actions of regulators. In 2019 then California Sen. Kamala Harris co-sponsored the Guidance Out of Darkness Act to require agencies to have portals that would let taxpayers see what they are up to.

These days bureaucratic secrecy is in. The White House Office of Information and Regulatory Affairs is supposed to review new proposed rules and examine costs and benefits. Even the Obama regulatory shop reined in the bureaucracy on occasion. In the Biden White House it’s largely a rubber stamp.

The nearby chart compares the estimated cost of regulations across each year of recent presidencies. Note the explosions in particular under Mr. Obama and especially now under Mr. Biden. The Biden onslaught is moving fast as agencies try to issue rules well before the end of the current Congress so they wouldn’t be subject to the scrutiny of the Congressional Review Act if Republicans control the White House and Congress in 2025. Under the CRA, Congress has 60 legislative days to repeal a rule.

Congress could use the power of the purse, but that’s difficult given that Democrats still run the Senate. That means the only real check is through lawsuits and the courts. The Supreme Court’s West Virginia v. EPA decision last year means agencies can’t rewrite rules on “major questions” without a clear command from Congress. That should save the day on several of the worst new rules, such as the Federal Trade Commission’s new ban on non-compete clauses for 30 million workers.

But that still leaves considerable running room for rules that cost less than $100 million, and the Biden bureaucracy will test the limits of the law. The burden of rule by regulators will slow economic growth and show up in nearly everything you pay for.

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Source: Biden’s Regulatory Deluge – WSJ