The Federal Regulatory State Is Out of Control. Here's One Way Congress Can Get Power Back

Sen. Rand Paul: "An important first step toward increasing accountability, oversight, and transparency in Washington."

There were more than 90,000 pages added the Federal Register, that behemoth of a book that annually tracks the growth of the federal leviathan, during 2016, making last year's list of federal rules and regulations a full 10,000 pages longer than the previous record.

Including last year's record-breaker, 13 of the 15 longest registers in American history have been authored by the past two presidential administrations (Barack Obama owns seven of the top eight, with George W. Bush filling in most of the rest), according to the Competitive Enterprise Institute, a free market D.C. think tank that diligently tracks the pages of the registry each year.

If Donald Trump's incoming administration aims to reverse that worrying trend—something the president-elect has claimed to want to do—then it could use a helping hand from Congress. The growth of the regulatory state is inextricably linked to the expansion of the executive branch's powers in recent decades, but those powers have expanded in part because congress has willingly winnowed its own authority.

"Congress has been all too happy to delegate away those powers to executive branch agencies," says Ryan Young, a fellow at CEI. "Suppose a regulation passes that is unpopular or backfires or is burdensome, then congressmen, who do have to face re-election every couple of years, can say 'don't blame me, blame the EPA or the FCC' or whichever agency is responsible."

Last year, for example, Congress passed 211 bills while federal regulatory agencies approved 3,852 regulations, Young says.

To stop Congress from passing the buck like that, Young says federal lawmakers should pass something called the REINS Act—the "Regulations from the Executive in Need of Scrutiny Act.

The REINS Act would require every new regulation that costs more than $100 million to be approved by Congress. As it is now, agencies can pass those rules unilaterally. Such major rules only account for about 3 percent of annual regulations, but they are the ones that cause the most headaches for individuals and businesses.

"What the REINS Act would do is add a little bit of democratic accountability to the regulation process," Young told me during this week's episode of American Radio Journal.

Congress would also be required to review all existing regulations that surpass that $100 million threshold. Right now, there's no clear accounting of how many such rules exist, so assessing the landscape would be a necessary step before reforms could be enacted.

The fly in the ointment, of course, is that for congress to reassert its authority it first has to want to reassert its authority. It's not clear that a majority of its members do, probably for the political reason that Young outlined.

Still, the REINS Act did pass the House on four occasions during the Obama administration. Lack of support in the Senate and the threat of a presidential veto kept it from ever reaching Obama's desk.

That might change under President Trump, who has made no secret of his desire to slash federal regulations. He's promised to rescind two federal rules for every one new regulation added to the books.

"REINS is an important first step toward increasing accountability, oversight, and transparency in Washington, and it's one of the best ways President-elect Trump and the new Republican Congress can show we're responding to the American people's demand for change," said Sen. Rand Paul (R-Kentucky) in a statement earlier this month when he co-sponsored the Senate version of the REINS Act along with 25 of his colleagues.

Listen to my whole interview with Young here.