Death by a Thousand Regulations: The Biden Administration’s Campaign

“The true test of a good government,” Alexander Hamilton wrote in The Federalist, “is its tendency and aptitude to produce a good administration.” There is deep cause for concern that the modern administrative state fails that test.

The failure is twofold. First, the administrative state imposes enormous regulatory burdens on the American public. Second, it imposes those burdens through increasingly unaccountable and unsteady methods. This causes great legal and regulatory uncertainty, which ultimately corrodes the public’s faith in government itself, as Hamilton himself warned.

Recent actions by the Biden Administration exemplify these worrisome trends. The Securities and Exchange Commission is pushing itself past longstanding statutory and constitutional limits, turning itself from a securities regulator into a climate regulator; left unchecked, the SEC and other financial regulators may make themselves the new “everything regulators.” The FTC, meanwhile, is overturning longstanding policies and taking other actions to replace regulatory certainty with regulatory uncertainty, which it can then leverage to further expand its practical power. And the White House has undertaken wholesale rescissions of executive orders that promoted transparency and due process in administrative agencies. All of this makes the administrate state’s actions less transparent, less accountable, more powerful, and more unlawful. I discuss these in greater detail in Part III of this written testimony.

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