As the U.S. government shifts gears and transitions to a new administration, it seems that one of the first orders of business was to create and sign “Executive Orders” that according to President Biden were “not to enact new policies but to correct bad ones.” In his first two weeks in office, President Biden signed nearly as many executive orders as Franklin Roosevelt signed in his entire first month. And President Roosevelt holds the record.
Adding his signature to three executive orders on immigration by Tuesday, February 2, Biden had signed 28 executive orders since taking office. FDR signed 30 in his first month. “By sheer volume, Biden is going to be the most active president on this front since the 1930s,” said Andy Rudalevige, a professor of government at Bowdoin College. All of these executive orders are sent to the Office of the Federal Register
According to the Office of the Federal Register, in 1998, the Code of Federal Regulations (CFR), the official listing of all regulations in effect, contained a total of 134,723 pages in 201 volumes that claimed 19 feet of shelf space. In 1970, the CFR totaled only 54,834 pages. By the end of 2013, there were 175,436 pages! Our lives and those of our children are “regulated” daily without our recognition or approval in every area from food and drugs and agriculture to planes, trains and automobiles right down to the label on furniture that says it is illegal to remove it (except by owner) and each of us has probably taken great pleasure in doing so. It’s a miracle that we and our children survived without seat belts and car seats for kids. I am in favor of seat belts and car seats as the evidence says they save lives.
The General Accounting Office reports that in the four fiscal years from 1996 to 1999, a total of 15,286 new federal regulations went into effect. Of these, 222 were classified as “major” rules, each one having an annual effect on the economy of at least $100 million. [Source: Costs of Federal Regulation, the Heritage Foundation] Ever wonder how many have gone into effect since 1999? There are 50 general categories that regulate anything that moves, lives or breathes. While they call the process “rulemaking,” the regulatory agencies create and enforce “rules” that are truly laws, many with the potential to effect the lives and livelihoods of millions of Americans. What controls and oversight are placed on the regulatory agencies in creating the federal regulations?
The Clean Air Act, The Food and Drug Act, The Civil Rights Act — examples of landmark legislation requiring months, even years of highly publicized planning, debate, compromise and reconciliation in Congress. Yet the work of creating the vast and ever-growing volumes of “federal regulations,” the real and enforceable laws behind the acts, happens largely unnoticed in the offices of the government agencies rather than the halls of Congress.
What are federal regulations? Where do they come from and under what oversight are they written, enacted and, at least once so far, de-enacted? Federal regulations created by the regulatory agencies are subject to review by both the president and Congress under Executive Order 12866 and the Congressional Review Act of 1966. Executive Order 12866, issued on Sept. 30, 1993, by President Clinton, stipulates steps that must be followed by executive branch agencies before regulations issued by them are allowed to take effect.
For all regulations, a detailed cost-benefit analysis must be performed. Regulations with an estimated cost of $100 million or more are designated “major rules,” and require completion of a more detailed Regulatory Impact Analysis (RIA). The RIA must justify the cost of the new regulation and must be approved by the Office of Management and Budget (OMB) before the regulation can take effect. Executive Order 12866 also requires all regulatory agencies to prepare and submit to OMB annual plans to establish regulatory priorities and improve coordination of the Administration’s regulatory program. The OMB publishes this Report of Regulations Pending and Reviews Completed – Last 30 Days. The report is updated every weekday.
While some requirements of Executive Order 12866 apply only to executive branch agencies, all federal regulatory agencies fall under the controls of the Congressional Review Act. The Congressional Review Act (CRA), passed in 1996 as part of the Small Business Regulatory Enforcement Fairness Act, allows Congress 60 in-session days to review and possibly reject new federal regulations issued by the regulatory agencies. Under the CRA, the regulatory agencies are required to submit all new rules to the leaders of both the House and Senate. In addition, the General Accounting Office (GAO) provides to those congressional committees related to the new regulation, a detailed report on each new major rule.
Should any member of Congress object to a new regulation, he or she can introduce a “Resolution of Disapproval” to have the regulation rejected. Should the resolution pass both House and Senate by simple majority votes, and the president signs it, the regulation basically vanishes. Since going into effect in 1996, the Congressional Review Act has been successfully invoked exactly once. On March 7, 2001, Congress gave its final approval to Senate Joint Resolution 6 disapproving the controversial final regulations on ergonomics created by the Occupational Health and Safety Administration’s (OSHA) and set to take effect in October, 2001
I do not know what motivated the movement of opposition, but someone, somewhere got sufficiently organized to mount a campaign to support the disapproval. While viewed by many among labor organizations as a worker health and safety issue, the ergonomics regulation is an illustration of the ongoing debate between external control and personal responsibility. In the creation of a welfare state, mentality and attitude goes beyond making monthly payments to people who are economically disadvantaged.
Regulatory Agencies, like the FDA, EPA, OSHA and at least 50 others, are called “regulatory” agencies, because they are empowered to create and enforce rules – regulations – that carry the full force of a law. Individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and even jailed for violating federal regulations.
I was introduced in 1994 to ADA – Public Law 101-336, enacted July 26, 1990, which regulates, among many other things, accessibility to buildings for Americans with disabilities and in my particular case, the issue surrounded remodeling a building for use as a private, not a public school. Were we going to have to put in an elevator to accommodate any student who could not use the steps? Was that, according to the law, a “reasonable accommodation?” And who is going to determine the answer to all the questions? Would we also have to provide designated parking places for people with special physical needs? Would all the required signs need to be posted in all the required places?
This regulation was on top of all the local building code requirements for a certificate of occupancy which had to be issued after inspections by the fire department, the city building inspector, the state environmental agency, and numerous others. Frustrating, time consuming and expensive? Yes. Impossible? No. Did we get it done? Yes. Was each requirement fulfilled to the letter of the law? No. Did we open the school anyway? Yes. Were we fined or jailed? No. Did we have lawyers to help us? Yes.
In addition to all the Federal requirements legislated and imposed upon us, without so much as a vote or voice from the populace, you can add a myriad of regulations that come down from state, county and city offices as well, all the way down to such minute requirements as those for parking. If you live in New York or London, try figuring out all the various parking regulations and various signs posted indicating those restrictions. Or try dealing with some of the state licensing requirements for different kinds of businesses.
There is the famous Reg Penna Dept Agr which, in my mind, became symbolic for all the food labeling requirements. Are you one of those who reads the labels on the food you buy? These are not regarded as undesirable in terms of intentions but taken as a whole, our society seems to be more externally controlled, restricted and protected than others I know. Many would say thank goodness big brother is looking out for our best interests but we should also know that underneath much of this is a fear that some people harbor that allows them to be manipulated by others without their knowledge or consent.
I am not talking about some conspiracy theory or paranoia. I am trying to observe a level of awareness or the lack thereof. How much do we really know or how much do we care to know? What makes sense? The fear is the same kind that allows an inept security system at airports to spend gazillions of dollars with little improvement in real security. The façade of security is intended to help people believe that they are more secure when in fact, they may or may not be. The point is that we have turned over control to an external source and created another bureaucracy, much the same as we do with other governmental and institutional regulations.
We need to be willing to live with a bureaucracy and do whatever it takes to cut through the nonsense and come out refreshed and renewed on the other side of success. Now, about these masks!