New Report Exposes Onerous Overregulation From The Administrative State

By Tristan Justice

A new report from the libertarian Competitive Enterprise Institute (CEI) offers new insight into just how much unelected bureaucrats have adopted and embraced Article 1 powers of legislating in the administrative state.

According to CEI’s annual “Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State,” federal regulations have cost an estimated $1.9 trillion each year. That’s $14,455 per American household on average in “hidden taxes,” greater than corporate and personal income taxes combined. In 2019, government agencies passed 2,964 new regulations, the first year that federal bureaucrats passed fewer than 3,000 since records began to take measure in 1976. That’s still thousands of new rules passed in the absence of Congress, however, which passed just 105 bills in comparison.

Even as new regulations dropped below 3,000 largely as a result of President Donald Trump’s two-for-one rule, wherein agencies were required to cut two regulations for each new one passed, obstacles remain in restoring legislative power to Capitol Hill.

“If Obama had a pen and a phone, then Trump can have a little bit of a meat axe,” said CEI Vice President for Policy Wayne Crews, who compiled the report, but added that Trump’s power in rolling back the administrative state faces limits. Trump can’t get rid of rules, he can only replace them, making it difficult for Trump to command agencies to forgo their massive power.

Independent agencies, Crew told The Federalist, were even worse, as the two-for-one rule applies only to executive agencies with presidential oversight.

Even under Trump, counterproductive new regulations have made their way into de facto legislation pushed by unelected bureaucrats held largely unaccountable from public scrutiny.

One such area of overregulation the Trump administration has welcomed is on flavored e-cigarette products. While Trump ultimately backed down from a nationwide ban on flavored vaping devices, the Centers for Disease Control and Prevention (CDC) and the Food and Drug Administration (FDA) have each ramped up their efforts to inflame a moral panic around such devices and strip them from the market.

Crew explains in the report that tobacco companies face tight deadlines to file the FDA’s pre-market tobacco applications to keep selling flavored vaping products, which are proven to be the most effective form of smoking cessation. These applications, however, now due in September as opposed to this month due to COVID-19, are prohibitively expensive and restrict smokers’ access to the life-saving devices by inevitably removing the products from sellers who lack the money and resources to bypass the FDA’s costly process.

CEI Senior Fellow Michelle Minton told The Federalist that so far only one company has even filed its application, which totaled upwards of 150,000 pages, with just four months to go. Very few others are expected to file theirs, putting them at the mercy of the FDA making what Minton described as little more than a “judgement call” on approval from an agency already hostile to the products. Minton said the FDA was supposed to create a streamlined process for smaller enterprises to submit their applications to keep the products on the market, but so far only scant progress has been made.

Overregulation could very soon force these life-saving tools innovated to combat the greatest cause of preventable death in the United States back onto the black market, given they are relatively easy to manufacture at home, raising concerns of another outbreak of contaminated cartridges as were found in illegal THC pods last fall.

The FDA and CDC, meanwhile, were already shown to be distracted from the emerging threat that the novel coronavirus has now presented to combat a fake epidemic in teen vaping.

“Despite the progress made on regulatory reform under President Trump, America’s regulatory state is still causing major problems in America’s pandemic response. Overregulation will make the coming recovery far more difficult than it needs to be,” Crews said. “And that progress is further threatened by President Trump’s own regulatory impulses on issues ranging from antitrust enforcement to trade restrictions to media content regulation, and more.”

The concern over policymakers leaping to overregulate in the time of crisis has prompted many to call for the government to permanently lift some regulations that have been temporarily waived in light of the pandemic, such as federal laws barring medical professionals licensed in one state from practicing in another. In April, CEI released an extensive list of red-tape regulations it is calling on policymakers to remove for a smoother recovery once the nation begins to move past draconian lockdowns.

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