The following are remarks prepared for a panel, “Donald Trump and the Future of Democracy,” at the Eastern meetings of the American Philosophical Association, January 2018 — Part 4. To read part 3, click here. To read part 2, click here. To read part 1, click here.
The administrative state makes it impossible to know what the law requires and what it prohibits. I've already talked about the case-by-case nature of many decisions, the absence of precedent, the vagueness of statutory and regulatory language, and the courts' deference to agency interpretations. All of those factors make it difficult to know in advance what conduct is required and what is prohibited. But that is only part of the problem. The size and sweep of the administrative state make it impossible for anyone to know the entire body of regulation — even with respect to a specified topic, especially in certain highly regulated industries and areas.
The Federal Register is published daily. The number of rules published in the Federal Register reached a new high of 7,745 in 1980, at the end of the Carter administration. That's 21 a day. The total number of pages in the Federal Register that year: 87,012, or 238 a day. The Obama administration broke that record; the Federal Register had 97,110 pages in 2016 — 265 pages a day. The final twenty days of the Obama Presidency added 6,730 pages — 337 a day. The number of major rules, those estimated to have more than $100 million in impact, hit a peak of 100, or two a week (again under Obama, in 2010). It is thus impossible for anyone to master even a tiny fraction of administrative law.
What does all this have to do with Donald Trump? Everything. He campaigned on reining in the administrative state, describing federal regulations as ''the anchor dragging us down." He stressed consequentialist considerations, which are immense. From a recent study:
Regulation's overall effect on output's growth rate is negative and substantial. Federal regulations added over the past fifty years have reduced real output growth by about two percentage points on average over the period 1949–2005. That reduction in the growth rate has led to an accumulated reduction in GDP of about $38.8 trillion as of the end of 2011. That is, GDP at the end of 2011 would have been $53.9 trillion instead of $15.1 trillion if regulation had remained at its 1949 level. (John W. Dawson and John J. Seater, “Federal Regulation and Aggregate Economic Growth,” Journal of Economic Growth (2013), 137–177.)
Think about that for a moment. The economy would be three-and-a-half times larger today if regulation had remained at New Deal levels.
Just as significant, however, was Trump's more philosophical argument against rule by an elite and for a return to the rule of law. His supporters saw the American Republic and its fundamental principles as under profound threat as unelected and unaccountable officials controlled more and more of their lives. “Drain the Swamp” was not only a cry against corruption; it was a cry against the unaccountable accumulation of power.
During his first year, President Trump has made significant progress on limiting the administrative state. The number of pages in the Federal Register has dropped nearly in half, averaging just 162 a day — the lowest number since 1990. Congress has repealed fourteen major Obama regulations. Trump has delayed or withdrawn 1,500 others, including the Clean Power Plan. His Executive Order 13771 requires agencies to eliminate two regulations for every one added and guarantee that there is no net cost to the economy. So far, he has exceeded that, eliminating 22 for each new rule.
Trump has appointed regulatory reformers to key positions; introduced regulatory budgeting; and declined to take executive action on key questions, insisting that Congress address them. He has brought an end to “sue and settle” practices. He has appointed judges, including Justice Gorsuch, who are skeptical of deference to administrative rulemaking. He has had the government switch sides in a key case, Lucia v. SEC, concerning administrative law judges. As “inferior officers” wielding judicial power, the administration is now arguing, administrative law judges fall under the Appointments Clause and thus must be appointed by the president, a court, or a department head. Astoundingly, up to now they have not been; they are simply employees of the relevant department or agency.
All departments except Homeland Security, the VA, and Interior have fewer employees now than when Trump took office. And he has proposed 30 percent cuts to funding of several agencies, cutting waste and duplication while insisting on high standards of conduct and performance.
Daniel Bonevac is Professor of Philosophy at the University of Texas at Austin. Author of five books, most recently, "Ideas of the Twentieth Century," and editor or co-editor of four others, he has published over 60 articles in professional journals. He has also written for The Washington Post, The Critique, and The American Spectator. His massively open online course, "Ideas of the Twentieth Century," has enrolled over 50,000 students. He is co-founder of BriefLogic, a marketing communication firm. He is also a contemporary Christian musician and songwriter; you can hear his music on his daughter’s debut album, "Transfiguration." To read more of his reports — Click Here Now.