Dumb Graph Shows Nothing

This graph purports to show an increase in regulation activity in the United States:

The Federal Register is the place where administrative agencies put notices of proposed rulemaking (NPR). The assumption underlying the graph is that more pages in the Federal Register means that there are more proposed rules and therefore more regulatory activity. But that is only true if the page length of a given NPR has held constant over time. It has not.

The required content for an NPR that is placed in the Federal Register is governed by the Administrative Procedure Act of 1946. But over time, courts took it upon themselves to ramp up the APA’s requirements for an NPR. Richard Stewart explains in the Harvard Law Review in 1978:

In order to develop a more adequate basis for effective review, lower courts began to require administrators to disclose the factual underpinnings of proposed rules and to respond in detail to commenting parties’ factual and analytical criticisms of the proposed rules and of the supporting materials mustered by the agency. In response to these rulings, agency lawyers sought to bolster the agency’s position by elaborate documentation, while respondents and intervenors submitted contrary documentation which they themselves developed or obtained from agency files through Freedom of Information Act litigation. These various documents provided an elaborate record for judicial review, and courts required agencies to provide a detailed explanation for final adoption of rules by reference to this record.

To survive increasing levels judicial scrutiny, it became necessary for administrative agencies to disclose in their NPRs all of the important and relevant information that underlies their proposed rules. This made the length of NPRs longer, which also increased the number of pages in the Federal Register. Using Federal Register pages to measure the level of regulatory activity therefore makes no sense whatsoever. More pages does not reflect more regulations. It reflects longer explanations and justifications for regulations, which courts forced administrative agencies to provide right around the time you see page length spikes.

Although counter-intuitive, the ballooning page length of the Federal Register is a consequence of it becoming much harder to make a regulation. It is a consequence of the courts clamping down on regulatory agencies and forcing them to do more research, explanation, and justification to avoid having their regulations struck down in judicial review.