In 2023, the Biden administration published over 90,000 pages in the Federal Register (“FR”).  This was second only to Obama’s record-setting 95,894 pages in 2017, but Biden will be taking this title from Obama this year as we soar to new heights of federal overreach.  In fact, since election day last month, the Biden administration has published nearly 16,000 pages in the FR.  Once something is published in the FR, it takes enormous effort to even attempt to undo it.  The question is — why let it get that far?  If the government shuts down, so does the Federal Register, which could prevent hundreds of additional rules from being finalized or proposed.  This is a truly historic opportunity for Trump, DOGE, and the Republicans.

We should learn from Obamacare — and do what we can to prevent things from being adopted in the first place (in this case demand a shutdown).  It is very complicated to undo regulatory efforts.  For example, a final rulemaking would require a new proposed and final rule be completed to undo it.  This can create risk that an agency could be sued; worse yet this could result in a “sue and settle” outcome.  Not finalizing a proposed rule can open an agency to lawsuits via the Administrative Procedures Act, further dragging out the process and creating uncertainty for the administration in charge.  If it’s a last-minute final rule, Congress may be able to consider overturning it using the Congressional Review Act, however, since the CRA was enacted in 1996 it has been used twenty times…for reference the Biden administration has finalized 447 rules since election day.

The Biden administration has been extraordinarily busy promulgating regulations for the past few years, but has really turned up the heat since their November 5th “surprise.” One way to measure this is to review what has been published in the Federal Register since November 1st.  The results are quite amazing.  Figure 1 below shows that prior to the election there were generally less than 400 pages in the FR daily…which has not just roughly doubled since the election, but hit a high of nearly 1,600 pages in one day since then as well… This fun is just getting started!  It takes time to get documents written, reviewed, processed, and published in the FR.  That ill-fated first week in November was no doubt filled with conversations about how much could be published before inauguration day, and it only took a few weeks to start making serious progress.  This progress will likely be unstoppable until inauguration day…unless…there’s a shutdown.

Figure 1, created by author using government data

In addition to final rules and a large number of pages, the Biden administration has been working overtime inserting other things into the FR as well.  Figure 2 shows the total number of rules (proposed and final), presidential notices, and a major increase in the number of significant documents published since the election. The trend is obvious and ominous.

Figure 2, created by author using federal data

To summarize, since election day the Biden administration has on average published the following each day in the Federal Register — and at an increasing rate:

• 500+ pages total
• ~7 proposed rulemakings
• ~15 final rulemakings
• Nearly 120 “Notices” 
• At least one Presidential Notice
• At least two Significant Documents

What does this all mean?  If the Biden administration continues the current pace of publication in the FR, and Trump and the Republicans let the government shutdown until inauguration day, we could potentially avoid the following additions to the Federal Register:

• ~12,000 pages of total content
• ~150 proposed rulemakings
• ~480 final rulemakings
• ~2,600 “Notices”
• ~30 Presidential Notices
• ~55 Significant Documents

A shutdown until inauguration day immediately stops the federal bureaucracy from 18 days of nonstop work on midnight regulations.  The Trump Administration wouldn’t have to focus resources on fighting these battles before focusing on implementing their own regulatory priorities.

Midnight regulations are not a new thing, but having the opportunity for a government shutdown to stop them is a unique opportunity that President-elect Trump and Republicans should not miss.  Why even risk that there could be some 600 more rulemakings for the Trump Administration to deal with? Shut it down!

Image generated by AI.