Federal Regulations: The “Administrative State” in Context (Federalism Index Project)

Federal agencies are tasked by Congress to create rules (“administrative laws”), which have the effect of law. Each year, regulatory agencies produce a significantly higher number of rules than laws passed by Congress. According to regulations scholar and historian Clyde Wayne Crews, agencies, rather than elected Congressional officials now do the vast majority of lawmaking today – raising questions not only about the economic cost of regulation, but the constitutionality of the regulatory process as it has evolved over time. Crews has monitored the number of rules passed in relation to laws, and produced a measure which he terms – somewhat playfully – “the Unconstitutionality Index.”

The Unconstitutionality Index measures the ratio of rules issued by agencies relative to laws passed by Congress and signed by the president. The following chart is based on Crews’ original research, and provides a summary view of public laws as a ratio of final rules. While Crews acknowledges that his formula is “somewhat lighthearted” and that there are “unavoidable complexities” in trying to measure the Unconstitutionality of rules, his work does provide empirical validation of the claim that there has been a significant shift in lawmaking from Congress to agencies.

In the last decade, there have been – on average – 22 final rules for every law passed by Congress and signed by the President:

How many regulations?

Measuring and tracking the real size or growth of regulatory activity over time has proved to be difficult. In part, this is because researchers lack consistent measures across time and across jurisdictions. In 2014, researchers at George Mason University published a database that attempted to quantify federal regulation, using the best available data going back to 1970. Using a novel method they termed “restrictions analysis”, the authors created a tool that helps to give a sense of the volume of regulatory restrictions. As the following chart shows, the total number of restrictions in the Code of Federal Regulations more than doubled from 1970 to 2022: