The CFR: A 190,000-page monument to executive overreach
We’ve heard a lot about draining the swamp over the past eight years, from President-elect Donald Trump when he first landed on the national stage and now, from the dual heads of his new Department of Government Efficiency (DOGE), Elon Musk and Vivek Ramaswamy. But what does that actually mean and entail?
In short, draining the swamp should mean reducing the size and scope of the federal government, specifically the federal bureaucracy. And doing so entails confronting a truly Herculean task: tackling immense volumes of federal regulations promulgated by executive branch agencies.
The Code of Federal Regulations (CFR) is the codification of rules issued by all federal departments and agencies. In other words, it’s where the swamp publishes its work. Administrations that want to shrink the size of the federal government must start with the CFR.
No presidential administration has come close to realizing this. According to data collected by the Regulatory Studies Center at The George Washington University, every presidential administration from Harry Truman to Joe Biden has left office with more pages in the CFR than when it started. Even perceived “deregulatory” presidents like Jimmy Carter and Ronald Reagan added tens of thousands of pages of regulations on net.
The four most recent administrations all presided over a ballooning code. At the end of 2000, the CFR contained 138,049 pages in 202 volumes. The Bush, Obama, Trump, and Biden administrations brought it to 190,260 pages spanning 245 volumes at the end of 2023—a net increase of 52,211 pages, or 38 percent, in just 23 years.
The Mercatus Center at George Mason University estimated that it would take someone reading full-time at a pace of 300 words a minute nearly three years to finish reading the 2012 version of the code. Nearly 16,000 more pages have been added since then.
Even President Donald Trump, who rode his “drain the swamp” campaign slogan all the way to the White House in 2016, failed to shrink the gargantuan CFR during his first term. His four years actually saw a net increase of 1,513 pages of regulations, as the CFR went from 185,131 pages at the end of 2016 to 186,644 pages at the end of 2020.
This is not to say that the size of the CFR is the perfect measure of an administration’s regulatory track record. But it is a good measure. And even by the Mercatus Center’s more refined measure of regulatory restrictions—CFR rules with the words “shall,” “must,” “may not,” “required,” and “prohibited” in them—the Trump administration again contributed a 0.9 percent increase and left office with 1,089,742 total restrictions in the code. That figure was nearing 1.1 million as of late October 2023.
And these figures don’t even account for the unknown number of guidance documents issued by agencies that, although not legally binding, direct the interpretation of their rules.
It’s safe to say that the regulatory burden on everyday Americans is not alleviated in any meaningful sense as long as the code keeps increasing. This breadth and complexity makes it nearly impossible for any normal citizen to know what the law requires.
The Framers understood the threat posed by an ever-changing, ever-increasing mass of laws. Such legal metastasizing “poisons the blessing of liberty itself,” as James Madison wrote in The Federalist No. 62. And the purpose of representative government is defeated, according to Madison, “if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they…undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”
Are we truly free if we have no reasonable way of knowing the laws to which we’re subject, when the overwhelming majority of them come from unelected bureaucrats instead of our elected representatives in Congress? With a six-figure code, the ominous maxim “Show me the man and I’ll show you the crime” becomes a reality for too many Americans.
Americans like Joseph Urbinati, Jr., who was fined $22,500 by the National Oceanic and Atmospheric Administration (NOAA) when his vessel Michele My Belle went slightly over the unreasonably slow speed limit set by NOAA of just 10 knots (equal to 11.5 miles per hour). This despite NOAA lacking the authority to impose speed limits, not to mention the fact that Urbinati wasn’t even the one steering the boat at the time.
Or the Edwards family of Logan County, Kansas, who are at risk of punishment under a U.S. Fish & Wildlife Service rule that prohibits a wide array of land use activity that could somehow affect the grassland habitats of the lesser prairie-chicken, a threatened species under the Endangered Species Act. The family has carefully maintained 3,000 acres of grassland on their property for cattle grazing but could face stiff civil and criminal penalties for the unfounded negative effects of such stewardship on the species.
Making inroads in weakening the administrative state requires weakening the regulatory weight on Americans’ shoulders. There are obvious places to start, such as the thousands of rules issued by agencies with no clear congressional delegation to do so. Specific agencies like the Environmental Protection Agency, whose number of regulatory restrictions has more than doubled since the mid-1990s and leads all other agencies, would be one ripe target. Once you reduce the workload, determining which bureaucrats, offices, and agencies should go becomes easy.
The job is daunting. The CFR is the product of the swamp—a web of inaccessible and burdensome rules and regulations the federal government won’t hesitate to sling at unknowing citizens. If any administration or Congress is serious about grappling with this regulatory inertia and draining the swamp, then they must first get to cutting.
