The Federal Register published 80,334 pages of new regulations in 2023 alone. That's 220 pages per day of rules that carry the full force of law, written not by elected representatives but by bureaucrats who answer to no one but themselves. Each page represents another brick in the wall between the American people and the government that supposedly serves them.
Photo: Federal Register, via cdn.prod.website-files.com
When Bureaucrats Become Legislators
The Constitution is clear about who gets to make law: Congress. Article I, Section 1 states unambiguously that "all legislative Powers herein granted shall be vested in a Congress of the United States." Yet today's reality mocks that clarity. The Environmental Protection Agency alone issued 2,179 pages of new rules in 2023. The Department of Health and Human Services added another 3,847 pages. The Treasury Department contributed 4,231 more.
These aren't suggestions or guidelines — they're binding legal requirements backed by criminal penalties, civil fines, and the full coercive power of the federal government. When the Consumer Financial Protection Bureau decides what constitutes "unfair" business practices, or when the Department of Education determines how schools must handle Title IX complaints, they're not implementing law — they're writing it.
The conservative principle at stake here isn't procedural nitpicking; it's the bedrock of legitimate government. The Founders understood that authority without consent is tyranny, whether exercised by a king or a committee. When Congress passes a law, voters can hold their representatives accountable. When an agency issues a regulation, the only recourse is to petition the very bureaucrats who wrote it.
The Numbers Don't Lie
Consider the scope of this constitutional displacement. In 2023, Congress passed 27 new laws. Federal agencies issued approximately 3,000 new rules with the force of law. That's a ratio of more than 100 to 1 — bureaucratic edicts outnumbering democratic legislation by orders of magnitude.
The Small Business Administration estimates that federal regulations cost the American economy $2.03 trillion annually. That's larger than the GDP of most countries, extracted from productive enterprise by rules written by people who have never met a payroll or worried about quarterly earnings. The regulatory burden per household now exceeds $15,000 annually — a hidden tax that no congressman ever voted to impose.
These regulations don't emerge from thin air. They represent policy choices — decisions about how Americans should live, work, and conduct business. When the Department of Labor redefines independent contractors as employees, it's making economic policy. When the Securities and Exchange Commission mandates climate disclosures, it's making environmental policy. When the Federal Communications Commission regulates internet content, it's making speech policy.
The Constitutional Crisis in Plain Sight
Proponents of the administrative state argue that modern governance is too complex for Congress to handle directly. They claim that elected representatives lack the expertise to regulate financial derivatives or pharmaceutical approvals. This argument misses the point entirely.
The Constitution doesn't exempt complex subjects from democratic governance — it requires Congress to make the hard choices about what gets regulated and how. If lawmakers lack expertise, they can hold hearings, commission studies, and consult experts. What they cannot do is abdicate their constitutional responsibility to unelected bureaucrats.
The Supreme Court recognized this problem in its recent revival of the nondelegation doctrine, but the damage runs deeper than any single ruling can repair. Decades of congressional abdication have created a parallel government that operates beyond democratic accountability. The administrative state now employs over 2.2 million civilian workers — a workforce larger than the active-duty military, wielding regulatory authority that touches every aspect of American life.
Photo: Supreme Court, via hls.harvard.edu
Beyond Partisan Politics
This isn't a partisan issue, despite how it's often framed. Republican administrations have expanded regulatory authority when it suits their purposes, and Democratic administrations have done the same. The Trump administration issued 3,281 pages of new regulations in its final year. The Biden administration has accelerated that pace.
The problem isn't which party controls the regulatory apparatus — it's that the apparatus exists at all in its current form. When presidents can reshape entire industries through executive agency action, when bureaucrats can criminalize business practices without legislative input, when unelected officials can impose trillion-dollar compliance costs without voter approval, the social contract has been fundamentally altered.
Restoring Constitutional Order
The solution requires Congress to reclaim its constitutional role. The REINS Act, which would require congressional approval for any regulation imposing costs exceeding $100 million, represents one approach. More aggressive reforms might sunset all existing regulations and require positive congressional authorization for their renewal.
Such measures would force lawmakers to make explicit choices about regulatory priorities rather than hiding behind bureaucratic delegation. They would restore the link between governance and consent by ensuring that major policy decisions flow through elected representatives answerable to voters.
Critics will claim that requiring congressional action for significant regulations would create gridlock. Perhaps. But gridlock is a feature of the constitutional system, not a bug. The Founders designed a government that moves slowly and deliberately, requiring broad consensus for major policy changes. The administrative state's ability to impose sweeping regulations without democratic input isn't efficient governance — it's constitutional subversion.
The Stakes Could Not Be Higher
The consent of the governed isn't an abstract philosophical concept — it's the practical foundation of legitimate authority in a free society. When that consent is bypassed through regulatory end-runs around democratic institutions, the entire constitutional order is at risk.
Every regulation issued without legislative authorization represents another step away from government by consent toward government by expertise, from democracy toward technocracy, from constitutional order toward administrative convenience. The American people deserve better than to be governed by bureaucrats they never elected, implementing policies they never approved, under authorities the Constitution never granted.
The regulatory state may be efficient, but efficiency was never the highest American value — liberty was.
