- As conservatives have anxiously pointed out for years, the rise of the administrative state has corrupted the rulemaking process.
- President Trump issued a “2 for 1” executive order, requiring the federal government to cut two rules for every new rule it issued.
- Government shouldn’t play favorites — which is exactly what the ATF risks doing by ruling by private letter.
Federal rulemaking should be open and transparent. This outcome is supposedly ensured by the Administrative Procedure Act of 1946 (APA).
Across federal agencies, the rules should be the same for everyone. They should be open for public comment while still in draft form and publicly available once finalized. Moreover, every industry and every individual should get the same answer to the same question. Anything less is not rulemaking: it is arbitrary government.
As conservatives have anxiously pointed out for years, the rise of the administrative state has corrupted the rulemaking process. Enabled by an overly-deferential judiciary and a supine Congress have allowed agencies to move beyond drawing up rules to implement carefully written laws passed by Congress. Now, regulators take block grants of Congressional power to make their own laws as they see fit. This is incompatible with the continued existence of the United States as a constitutional republic.