Voting rights against rule by the non-elected: the “unconstitutionality index” 2022


One of the paradoxes of the suffrage debate is that there is so much heat around electing people who end up not even being the lawmakers.

The unelected legislators and administrators who populate bureaucracies do most of this.

The other paradox is that we vote to elect people to do things that none of us have the right to do to each other; and in turn cannot delegate authority to a legislator.

More on that another time, but the historical status of the United States is that of a limited republic, not the unlimited democracy some factions demand today.

Columbia University scholar Phillip Hamburger has described the modern administrative state as running counter to the Constitution, which “expressly prohibits the delegation of legislative power”.

You wouldn’t know it from the furious debate over a voting rights bill and Senate rule changes to the filibuster to make it happen, but the key lawmakers of the day are a permanent class of law enforcement agencies. regulations and administration that are unresponsive to voters. Without an apology at Schoolhouse Rock, the elected Congress and the fountain-pen president don’t make the bulk of American law.

Agencies aren’t the main offenders here, though. Setting aside for the time being its routine assumption of sweeping powers of control that we ourselves cannot legitimately give it, Congress has shied away from its constitutional duty to legislate and instead routinely delegates substantial legislative power to the agencies. He then fails to watch them.

No one knows exactly how many federal agencies there are, but we can add up their number of rules and regulations each year using the Federal Register and National Archives databases. Agency executive orders, from the most insignificant to the most significant, easily exceed the annual number of laws passed by Congress.

These laws passed by Congress also range from the trivial to the significant, from naming post offices to enacting bills like Biden’s U.S. bailout, increasing debt limits, and the on investment and employment in infrastructure”.

However, by implementing such measures, Congress delegates regulatory authority to the agencies. The agencies’ incentives are to expand budgets and rules, so they accept each new authorization with joy.

Even in administrations determined to shrink the federal enterprise and reduce the number of rules, the thousands of rules issued by dozens of agencies easily “produce” Congress. Despite the “one-in, two-out” agenda, the regulatory enterprise has broadened overall under Donald Trump (the pandemic has been a major contributor to this). Indeed, it’s hard for a president acting alone to permanently streamline things, another notion that policymakers will later explore in regards to takeaways and lessons learned.

The year 2021 marked the first session of the 117th Congress and the arrival of Joe Biden, who rolled back Trump’s deregulatory regime and reneged on all of its principles.

With this rapid background on the transition and the attitudes of the actors with regard to regulatory liberalisation, let us look at where all the rules against laws stands today and consider the implications.

Congress passed, and Trump and Biden signed, a total of 143 laws in 2021

In 2021, during the 1st session of the 117th Congress, lawmakers passed and the president signed 143 laws, including 62 signed by Trump in January alone. (Anyone other than me can study “midnight legislation” in the modern age in the same way that other scholars, such as those at George Washington University’s Center for Regulatory Studies, do superb analyzes of the regulation of midnight.

There were 177 laws in 2020, Trump’s last full calendar year. (These counts are compiled from the Government Publishing Office’s public law archives as well as Govtrack’s legislative research.)

Amid such an annual legislative product are mundane things like the aforementioned name and address designations for post offices and community centers to honor politicians and dignitaries, and laws on everything from appeals automated to flood insurance. There are also important budgetary and appropriation texts, such as defense funding bills and reauthorizations of agencies and their giga-programs.

Yet we find that the unelected federal bureaucracy is even busier making laws than Congress.

Federal agencies issued 3,257 rules in 2021

For recent context, in the 2016 calendar year under Barack Obama, agencies produced a record 95,894 pages Federal Register jam-packed with 3,853 rules and regulations. (In previous decades, the number regularly comfortably exceeded 4,000, sometimes even exceeding 7,000.)

The number of menstrual periods dropped markedly with Trump. The 2017 Federal Register the 61,308 page count was the lowest in a quarter century. Counts rebounded afterward, hitting the second-highest of 86,356 pages in Trump’s final year. In these pages, the agencies generated 3,353 rules, still an all-time low, and containing hundreds deemed by the Trump team in 2020 to be “deregulated.”

Under Biden, the 2021 draft page count (the National Archives will eliminate blank pages and other errata later) stands at 74,532, and the rules count at 3,257, with no push for deregulation to eliminate anything. it would be.

Like laws, annual rules and regulations range from the routine to the most economically significant. But again, where laws top the tens or hundreds each year, federal agency rules and regulations are well over 3,000 per year (apart from the record 2,964 rules in 2019 under Trump). With that, we turn to the “index of unconstitutionality”.

The “Index of unconstitutionality”: 23 rules for each law passed in 2021.

Rules issued by agencies in any given year are of course unlikely to have a direct link to legislation passed by Congress in the same year, but the streams are interesting to note.

In 2021, the agencies published 23 rules and regulations for each law passed by Congress, as shown in the table below (3,257 rules versus 143 laws passed by Congress).

The index can fluctuate considerably; he had been 19 in 2020, Trump’s last year. It was 18 last Obama year and 33 at the end of Trump’s first year, when only 98 laws had been signed into law. There is of course an overlap between conventions in the calendar year format described below.

I like to call this ratio “the unconstitutionality index,” and it’s simply the multiple of the rules issued by the unelected bureaucracy times the number of laws passed by our elected Congress each calendar year. That is to say quite simply:


The average over the last decade is 26. The graph below illustrates the index of unconstitutionality going back to 2003 (the table goes back to 1993 in the ten thousand commandments summary in the historical tables, part I).

The 2022 Unconstitutionality Index: 23 federal agency rules for every law passed by Congress.

There is no pattern to this, since the number of rules in the numerator and the number of laws in the denominator can fluctuate widely for uncorrelated or correlated reasons that graduate students could probably write essays on.

The index will be higher, of course, with fewer laws in the denominator or with more rules in the numerator. Even ejecting rules like Trump tried to do requires writing other rules to replace them, “worsening” the index from the perspective of someone hoping to streamline. With Biden, we can expect the period count to climb from its freshman level.

The unconstitutionality index is a way of highlighting the extent to which the unelected staff of federal agencies – bodies created mostly in the second half of the United States’ existence – do most of the law-making. This applies regardless of the party in power.

This anomaly is the elephant in the room – and the donkey in the room too – of the voting rights debate that is currently unfolding. A permanent bureaucracy rather than elected members of Congress and an elected president set the rules once Congress passes a vague law.

The concern goes beyond the rules and regulations mentioned above which adhere to the typical public notice and comment procedure. Beyond these are sub-regulatory agency executive orders like policy documents and memoranda, as well as various presidential executive orders and directives (of which President Biden is a fan) that extend political influence. not legislative. Under administrations that greedily use executive power to circumvent Congress, non-regulatory directives can emerge from agencies such as, for example, eviction moratoriums, student loan changes, and gun measures that can probably belong to the numerator with all the other rules.

In any event, without even incorporating guidance documents, the index can be expected to rise again as the Biden administration releases more rules in 2022 amid a deadlocked Senate. prevents the adoption of many laws.

Although the index of unconstitutionality may zigzag in unexpected ways, it captures the essence of who the decision makers are. It is important to watch the regulations versus the laws and think about why the fluctuation is happening at any given time and what it means.

It matters both who makes the law and how much law is made. Often the operators aren’t the ones we assume in battles over voting rights.


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