The "Administrative State" in Context
Regulations in a modern complex economy are inevitable, like death and taxes. While regulations are intended to protect Americans from harmful practices, and while the vast majority of agency rules are insignificant or routine, the expansion of federal regulatory power in recent decades has also changed the nature of the American federal system. The expanded use of regulatory policy has also generated controversy and debate over the "Administrative State." In turn, there has been an increase in public concern over the potential implications for the long-term structural autonomy of the states.
The following primer provides an overview of regulations and rules in the United States that have implications for the future of American federalism.
How Many Agencies?
Rules, regulations, and administrative decisions are made by government commissions and various agencies which derive their authority from Congress and the legislative branch of state legislatures. Most agencies are part of the executive branch. As of writing, there is no authoritative list of official government agencies. Estimates range from 60-440 agencies, sub-agencies, and departments in the federal government.
In 2023, the largest federal offices with the most personnel (non-defense related) were the Department of Veteran Affairs, Department of Justice, Treasury Department, Department of Agriculture, and Department of Health and Human Services:
See: "Federal Civilian Employment in the Executive Branch" here
According to Pew Research, the least popular agencies are the following:
Department of Education
Department of Justice
Dep. of Homeland Security
Dep. of Transportation
Health and Human Services
The most favorable are the National Park Service, the US Postal Service, and NASA.
Regulations v. Public Laws
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:
See "Regulation Without Representation: A Quick Revisit of the 'Unconstitionality Index"
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:
Most Restrictions Over Time
Which federal agencies have passed the most restrictions over time? As the following chart shows, there significant variation over the last few decades. While the EPA is not in the top five largest agencies by size, today, it is the federal agency with the largest share of activity when measured by number of restrictions:
Federal Spending by Agency
Another way to compare agency size is by comparing spending over time ("agency outlays"). As this dashboard shows, the three largest agencies measured by spending are the Department of Health and Human Services, Social Security Administration, and Department of the Treasury.
See: department of treasury fiscal data
Which States Have the Most Regulation?
Recently, scholars have begun to track and measure the quantity of state level regulations, with a view to documenting the "prohibition" and "obligations" contained in state regulatory texts. According to scholars James Broughel and Patrick McLaughlin from the Mercatus Center, California has the most regulatory restrictions, followed by New York , Ohio, Illinois, and Texas:
Agency Enforcement Costs
How much does it cost to enforce agency rules?
There have been many attempts in recent years to capture the full cost of enforcing regulations. According to one estimate, the enforcement costs for federal agencies account for nearly $80 billion per year. Of that amount, roughly 17% is incurred for administering economic regulation. By far the greatest cost in recent years is attributed to enforcing "social" regulations, estimated at more than $65 billion per year:
How Many Pages?
While there are a number of problems relying on pages* in the Federal Register, and while the number of pages is obviously not a good indicator of the state-federal relationship alone, tracking the number of federal regulations in pages can be a useful starting point, for visualizing complicated relationship between the federal government and states over time. Page counts - while obviously a very crude measure - do provide a gross estimate of the sheer size of regulatory activity over the decades.
Pages in the Code of Federal Regulations
The code of federal regulations is the codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. From 1975 until 2019, the total page count grew from 71,224 to 185, 984. This represents a 161 percent increase over that period:
Regulations with "Federalism Implications"
How do we know if regulations have "federalism implications"?
In 1999, President Clinton issued "Executive Order 13132 on Federalism". The objective was to guarantee "the Constitution's division of governmental responsibilities between the federal government and the states." It did so by outlining nine "principles of federalism" (see Section 2) and then providing a series of criteria for federalism policymaking (see section 3). One of those criteria was a new rule, mandating agencies to describe whether their rule contained significant "federalism implications."
How successful were efforts in the late 1990s to measure policies with federalism implications? As below, efforts to increase the transparency of agency action (in relation to the states) have been modest, although questions still exist about the seriousness and quality of agency reporting on federalism implications:
In Brief, Regulatory Federalism: Policy, Process, Impact and Reform, Advisory Commission on Intergovernmental Relations
Beginning in the early 1980s, federalism scholars have called attention to a shift from financial aid to states to an emphasis on federal regulatory programs.
Regulatory restrictions have increased steadily since the 1970s
Today, the three largest agencies measured by spending are the Department of Health and Human Services, Social Security Administration, and Department of the Treasury
California has the most regulatory restrictions, followed by New York , Ohio, Illinois, and Texas
Today roughly 17% of agency costs are associated with economic regulation. By far the greatest cost in recent years is attributed to enforcing "social" regulations, estimated at more than $65 billion per year
There has been a 161% in the Code of Federal Regulations from 1975-2020
Further empirical work is needed to monitor and assess trends in regulatory activity. As one scholar notes recently, "Researchers are only beginning to understand the causes and effects of the federal regulatory system’s massive size and dramatic growth over the past four decades" (McLaughlin, QuantGov, Mercatus Center at George Mason University, Arlington, VA, 2020).