Taking out the Regulatory Trash
By P.J. O'Rourke
A lot of government regulation is about to be swept away.
President-elect Trump has promised a regulatory cleanup. Republicans in the House and Senate tell us they're ready to wield the broom. And a Supreme Court with a soon-to-be conservative majority will make sure to put the lid on the trash can.
Or so we hope...
Government regulation is hard to get rid of. The Code of Federal Regulations (CFR) is the list of all the rules, directives, standards, edicts, and commands put into force by all the federal departments, agencies, sub-agencies, and commissions.
The CFR has grown from 71,224 pages in 1975 to 178,277 pages in 2015. The number of pages dipped slightly after Republicans took control of Congress in 1995 and plateaued a bit during the first part of the Reagan administration. But if the CFR were a blue-chip investment and its page length were its value... you'd be a happy trust-fund baby.
One problem with eliminating government regulations is that nobody seems to know how many government regulatory agencies even exist.
The Administrative Conference of the United States, a federal agency tasked with keeping track of federal agencies, says there are 115.
The Freedom of Information Act website maintained by the Justice Department lists 252.
The Federal Register Index records 257.
The count in The United States Government Manual is 316.
And testimony at a 2015 Senate Judiciary Committee hearing claimed there are "over 430."
If you're going to take out the garbage, it helps to know where the garbage is. Government bureaucracy seems to have been having a wild party and dumping its regulatory cigarette butts, Solo cups, and empty beer cans in the chandelier.
But there's another problem with eliminating government regulation, a problem that's more fundamental.
Politicians – left, right, and middle-of-the-road – don't understand that government regulation is a just-plain-bad idea.
The purpose of government is to protect persons and property. This requires about two laws – laws that have existed since time immemorial. They're right there in the Ten Commandments, No. 5 and No. 7: "Thou shalt not kill" and "Thou shalt not steal." And for the sake of sanctity of contract, let's throw in No. 8: "Thou shalt not bear false witness."
That's the law. And that's all we need. Regulation is a lot of screwing around with the details.
A regulator is somebody who tells you you're not allowed to kill and you're also not allowed to kill during months with an "R" in them. A regulator isn't satisfied with stealing being forbidden. He makes a list of what you're forbidden to steal – including, but not limited to, everything from aardvarks to zymometers. The law says you can't lie. The regulator says, if your socks match your tie, you can't lie, either.
Of course, if government regulations were nothing but silly, we could have a laugh, ignore them, and get back to business. But a skillful regulator does more than make pointless elaborations on the law. A skillful regulator takes the law and beats, bends, twists, and hammers it into an instrument of bureaucratic power.
A skillful regulator kidnaps the law and transports it from the realm of legislation to the realm of bureaucracy, where there is little or no lawmaker oversight. A skillful regulator moves the law beyond the reach of the law. Government regulatory agencies become a law unto themselves.
And at work inside the 115... or 252... or 257... or 316... or 430 government regulatory agencies are some very skillful regulators.
Congress and the president have to do more than get rid of a few government regulations. They have to get rid of the whole concept of government regulation.
We have plenty of laws against doing harm. But what if we decided to regulate doing harm? What if, for example, we passed "The Federal Harm Prevention Act"?
Imagine if we created a U.S. "Bureau of Harmlessness" to issue federal guidelines to eliminate all harm of any kind.
Actually, this is such a good example that I'm sure the Obama administration and its friends in Congress would have passed just such an act, if they'd thought of it first.
It's constitutional – at least under a liberal, Ruth Bader Ginsburg-type interpretation of Article I, Section 8 of the U.S. Constitution (the so-called "General Welfare Clause"): "The Congress shall have power to... provide for the... general welfare of the United States."
And what could be more conducive to the general welfare of the United States than a complete lack of hurt, pain, suffering, injury, adversity, abuse, detriment, and damage?
Now, let us contemplate what this new government-regulatory agency would be like.
First, its size. The Bureau of Harmlessness (BOH) would need to be large. How many experts would it take to determine what is harmful and what is not? All of them. And each of us is an expert on the subject of what we consider to be harmful to ourselves. The BOH would have 324,328,265 employees.
Second, its scope. The bureau would require exceptionally broad enforcement powers for its wide-ranging mandate. Just bringing wind, rain, and snow under federal control would present huge statutory problems and demand an extensive legal staff. (Fortunately, climate-change activists have shown us the way forward in achieving bureaucratic regulation of the weather.)
Finally, its effect on your daily life. Carbon dioxide has been proven to be harmful to the environment: "Exhale and Go to Jail."
Regards,
P.J. O'Rourke