Justice Neil Gorsuch and his former clerk Janie Nitze take to the Atlantic to argue “America Has Too Many Laws.” While I think they’re probably right, their argument is unconvincing.
Our country has always been a nation of laws, but something has changed dramatically in recent decades. Contrary to the narrative that Congress is racked by an inability to pass bills, the number of laws in our country has simply exploded. Less than 100 years ago, all of the federal government’s statutes fit into a single volume. By 2018, the U.S. Code encompassed 54 volumes and approximately 60,000 pages. Over the past decade, Congress has adopted an average of 344 new pieces of legislation each session. That amounts to 2 million to 3 million words of new federal law each year. Even the length of bills has grown—from an average of about two pages in the 1950s to 18 today.
The world is a radically more complicated place than it was a century ago and considerably more so than even forty or fifty years ago. It’s not surprising, then, that we need laws now that we didn’t then. Complicated matters require more detailed legislation (unless one wants to leave the details to experts in the bureaucracy, which I’m given to understand Gorsuch does not). Further, there has been a growing tendency, for a whole host of reasons, to pass omnibus bills rather than standalone measures.
And that’s just the average. Nowadays, it’s not unusual for new laws to span hundreds of pages. The No Child Left Behind Act of 2001 ran more than 600 pages, the Patient Protection and Affordable Care Act of 2010 almost 1,000 pages, and the Consolidated Appropriations Act of 2021—which included a COVID-19 relief package—more than 5,000 pages. About the last one, the chair of the House Rules Committee quipped that “if we provide[d] everyone a paper copy we would have to destroy an entire forest.” Buried in the bill were provisions for horse racing, approvals for two new Smithsonian museums, and a section on foreign policy regarding Tibet. By comparison, the landmark protections afforded by the Civil Rights Act of 1964 took just 28 pages to describe.
An omnibus budget bill is going to be much more detailed than a standalone measure. And I’m not sure the Civil Rights Act is a great example to emulate, given that we’re still litigating what it means six decades later.
These figures from Congress only begin to tell the story. Federal agencies have been busy too. They write new rules and regulations implementing or interpreting Congress’s laws. Many bear the force of law. Thanks in part to Supreme Court Justice Louis Brandeis, agencies now publish their proposals and final rules in the Federal Register; their final regulations can also be found in the Code of Federal Regulations. When the Federal Register started in 1936, it was 16 pages long. In recent years, that publication has grown by an average of more than 70,000 pages annually.
Meanwhile, by 2021 the Code of Federal Regulations spanned about 200 volumes and more than 188,000 pages. How long would it take a person to read all those federal regulations? According to researchers at George Mason University’s Mercatus Center, “over three years … And that is just the reading component. Not comprehension … not analysis.”
Even these numbers do not come close to capturing all of the federal government’s activity. Today, agencies don’t just promulgate rules and regulations. They also issue informal “guidance documents” that ostensibly clarify existing regulations but in practice often “carry the implicit threat of enforcement action if the regulated public does not comply.” In a recent 10-year span, federal agencies issued about 13,000 guidance documents. Some of these documents appear in the Federal Register; some don’t. Some are hard to find anywhere. Echoing Justice Brandeis’s efforts, a few years ago the Office of Management and Budget asked agencies to make their guidance available in searchable online databases. But some agencies resisted. Why? By some accounts, they simply had no idea where to find all of their own guidance. Ultimately, officials abandoned the idea.
Again, I’m sympathetic to the idea that we have too many laws and regulations. But mere page counts don’t tell me anything useful. My general preference would be to have fewer, simpler laws and regulations so that it’s easy for ordinary citizens to know what the rules are. But the fact of the matter is that things like the tax code and workplace safety laws and regulations are incredibly complicated—made more so by powerful people hiring armies of lawyers to skirt their plain intent and thus requiring a cat-and-mouse game where more laws and regulations are added to close loopholes.
Judicial decisions contain vital information about how our laws and rules operate. Today, most of these decisions can be found in searchable electronic databases, but some come with high subscription fees. If you can’t afford those, you may have to consult a library. Good luck finding what you need there: Reported federal decisions now fill more than 5,000 volumes. Each volume clocks in at about 1,000 pages, for a total of more than 5 million pages. Back in 1997, Thomas Baker, a law professor, found that “the cumulative output of all the lower federal courts … amounts to a small, but respectable library that, when stacked end-to-end, runs for one-and-one-half football fields.” One can only wonder how many football fields we’re up to now.
So, I haven’t the foggiest idea how many of those cases shouldn’t have been heard or whether those opinions were verbose. But, again, it contributes to the problem that there’s simply no way for ordinary citizens to know what the law is.
As you might imagine, much in this growing mountain of law isn’t exactly intuitive. Did you know that it’s a federal crime to enter a post office while intoxicated? Or to sell a mattress without a warning label? And if you’re a budding pasta entrepreneur, take note: By federal decree, macaroni must have a diameter between 0.11 and 0.27 inches, while vermicelli must not be more than 0.06 inches in diameter. Both may contain egg whites—but those egg whites cannot constitute more than 2 percent of the weight of the finished product.
Everyone knows about mattress warning labels, actually. And, given that post offices are federal installations, it stands to reason that there are federal laws governing conduct there. As to the size of pasta noodles, one could certainly argue that consumers can simply look at them and decide for themselves whether they’re too big or small. On the other hand, there’s rather substantial value in standardization so that one knows what one is buying when there are shelves and shelves of competing products.
Further, this gets to a point that applies to many of the complaints here: the overwhelming number of laws and regulations apply to a very narrow sector. I don’t know how long the portions of US Code or the Federal Register pertaining to pasta are but am reasonably confident that I’m not going to run afoul of them since I’m not in the business of manufacturing or distributing pasta products.
If officials in the federal government have been busy, it’s not as if their counterparts at the state and local levels have been idle. Virginia prohibits hunting a bear with the assistance of dogs on Sundays. In Massachusetts, be careful not to sing or render “The Star-Spangled Banner” as “a part of a medley of any kind”—that can invite a fine.
So, this is simply silliness unworthy of someone of Gorsuch’s stature. There are surely lots of antiquated laws on the books at the state and municipal level that seem quite silly. Presumably, they had a rationale at one point. But, unless they’re actually being enforced, it’s not obvious what the harm is.
On the other hand:
The New York City Administrative Code spans more than 30 titles and the Rules of the City of New York more than 50. In 2010, The New York Times reported on the regulatory hurdles associated with opening a new restaurant in the city. It found that an individual “may have to contend with as many as 11 city agencies, often with conflicting requirements; secure 30 permits, registrations, licenses and certificates; and pass 23 inspections.” And that’s not even counting what it takes to secure a liquor license.
Much of this, presumably, was considered necessary because people who opened restaurants were doing things that were harmful to their customers or employees. But, almost certainly, it could be streamlined to make things less onerous.
To appreciate the growth of our law at all levels, count the lawyers. In recent years, the legal profession has proved a booming business. From 1900 to 2021, the number of lawyers in the United States grew by 1,060 percent, while the population grew by about a third that rate. Since 1950, the number of law schools approved by the American Bar Association has nearly doubled.
This is an odd sleight of hand. The first statistic simply reflects what we’ve already discussed: the world is a lot more complicated now than it was before the invention of the airplane and the computer. The second actually contradicts the first: the population has more than doubled since 1950, so we’re arguably actually under-growing law schools.
Our legal institutions have become so complicated and so numerous that even federal agencies cannot agree on how many federal agencies exist. A few years ago, an opinion writer in Forbes pointed out that the Administrative Conference of the United States lists 115 agencies in the appendix of its Sourcebook of United States Executive Agencies. But the Sourcebook also cautions that there is “no authoritative list of government agencies.” Moreover, the United States Government Manual and USA.gov maintain different and competing lists. And both of these lists differ in turn from the list kept by the Federal Register. That last publication appears to peg the number of federal agencies at 436.
One suspects this is as much a matter of coding as counting. There are dozens of agencies within the Defense Department alone.
Reflecting on these developments sometimes reminds us of Parkinson’s Law. In 1955, a noted historian, C. Northcote Parkinson, posited that the number of employees in a bureaucracy rises by about 5 percent a year “irrespective of any variation in the amount of work (if any) to be done.” He based his amusing theory on the example of the British Royal Navy, where the number of administrative officers on land grew by 78 percent from 1914 to 1928, during which time the number of navy ships fell by 67 percent and the number of navy officers and seamen dropped by 31 percent. It seemed to Parkinson that in the decades after World War I, Britain had created a “magnificent Navy on land.” (He also quipped that the number of officials would have “multiplied at the same rate had there been no actual seamen at all.”)
I haven’t the foggiest idea why the Royal Navy grew so much during that period (although it included what we no know as World War I) but I’m not sure that it has much bearing on whether the United States has “too many laws.”
Does Parkinson’s Law reflect our own nation’s experience? In the 1930s, the Empire State Building—the tallest in the world at the time—took a little more than 13 months to build. A decade later, the Pentagon took 16 months. In the span of eight years during the Great Depression, President Franklin D. Roosevelt’s Works Progress Administration built some 4,000 schools, 130 hospitals, 29,000 bridges, and 150 airfields; laid 9,000 miles of storm drains and sewer lines; paved or repaired 280,000 miles of roads; and planted 24 million trees.
Compare those feats to more recent ones. In 2022, an op-ed in The Washington Post observed that it had taken Georgia almost $1 billion and 21 years—14 of which were spent overcoming “regulatory hurdles”—to deepen a channel in the Savannah River for container ships. No great engineering challenge was involved; the five-foot deepening project “essentially … required moving muck.” Raising the roadway on a New Jersey bridge took five years, 20,000 pages of paperwork, and 47 permits from 19 agencies—even though the project used existing foundations. The Post reported that in recent years, Congress has required more than 4,000 annual reports from 466 federal agencies and nonprofits. According to the lawyer and author Philip K. Howard, one report on the printing operations of the Social Security Administration took 95 employees more than four months to complete. Among other things, it dutifully informed Congress of the age and serial number of a forklift.
The extent to which comparing emergency situations like the Great Depression and WWII to ordinary ones is useful is less than obvious. But it’s doubtless true that the proliferation of regulations has made it much more difficult and expensive to build.
There’s a whole lot more to the article but it’s mostly anecdotal. But, overall, the piece doesn’t do a good job of selling an argument to which I’m naturally sympathetic.
