Joe Biden’s 2024 regulatory big bang—106,109 Federal Register pages—shattered cosmic records. But the 3,000 notice-and-comment rules chronicled there every year and archived in the Code of Federal Regulations (CFR) comprise a fragment of the regulatory universe. The notice-and comment rulemaking so many emphasize as “regulation” is light years from encompassing the full sweep of federal intervention in the economy, business and households.
To the observable final rules total one must add “rule equivalents” stemming from other corners of the legislative and administrative state galaxy. These include:
- Guidance documents, policy statements, memoranda and other forms of what we may call “regulatory dark matter”;
- The economic and social distortions of hundreds of billions in grants and subsidies as well as the strings attached to them;
- Rule-like conditions accompanying hundreds of billions more in contracts, procurements and acquisitions in the domestic, foreign and war economies;
- Pass-through grants-in-aid to states;
- Non-rule interventions such as antitrust, federal R&D steering and fusions of business and government including the replacement of competitive enterprise with public private partnerships (PPPs);
- Finally, looming on the event horizon is the potential for regulatory “dark energy” enabled by the Internet of Things, foreshadowed in recent legislation.
I have a fondness for astronomy and for astronomical analogies regarding the unknowable, and federal interventions beyond fiscal outlays, debt and conventional regulation fit the bill. The Drake Equation, created in 1961 by astronomer Frake Drake, is a way researchers guesstimate how many alien civilizations might be chatting out there in the Milky Way. Drake’s approach was multiplying the likelihoods of key junctures in the progression of extra-solar planets potentially harboring life capable of communications. Carl Sagan on the classic television series Cosmos explained Frank Drake’s equation to estimate “N”—the number of talkative alien civilizations—by multiplying the following terms:
- N*: Number of stars in the Milky Way (100 billion)
- Fp: Fraction of stars with planets (around 50 percent)
- Ne: Average number in a given solar system habitable or ecologically suited for life (maybe 0.01 for one percent chance)
- Fl: Fraction of suitable planets where life actually arises (similar or less likelihood than Ne)
- Fi: Fraction of planets with life where intelligence emerges (also very low)
- Fc: Fraction of intelligent civilizations that develop detectable electromagnetic communications (ditto)
- fL: Fraction of a planet’s lifetime graced by technical civilization (hundreds or thousands of years before destruction or self-immolation; take your pick)
Probabilities decrease the further to the right, but multiplying terms gives one a rough guess of who’s out there yakking it up. Tiny changes in assumptions yield a universe teeming with life, or a humanity cold and alone. Sagan sketched out an optimistic take of millions of civilizations in the Milky Way—and a pessimistic yet still thrilling guess of 10.
Dreck Invasion: A Drake Equation For Detecting Alien Rule Equivalents in the Administrative Universe
Official measurements of regulation and burdens of intervention are rare and sketchy – more astrology than astrophysics in the best of circumstances. Even rules themselves were not counted until 1976, when they stood at a whopping 7,401. Whether in terms of effect, scope, or (most significantly) dollar costs, we simply do not possess particularly useful additive units of regulation the way we can reckon dollars of federal spending. Counting numbers of rules, as we do here like everyone else, is crude since rules’ effects are all different.
But rule counts are what we have. So with that in mind and with apologies to Messrs. Drake and Sagan, we present a “Dreck Equation” for framing a more universal portrayal of rules alongside the heretofore invisible “rule equivalents” capable of eclipsing the countable rules observable by the naked eye. While today’s 440-plus agencies issue over 3,000 ordinary rules (thankfully not the 7,000 of yesteryear), the vastness and complexity of more abnormal forms such as dark matter, federal contracting conditions, subsidies, pass-through grants-in-aid to states and localities and more generate unappreciated rule equivalence. A preliminary, simplified, crude, average “Dreck Load” (DL)—rules plus effective rule equivalents that everyone obeys in a given year —may be expressed in like this:
Dreck Load = Rules + (Dark Matter x β) + (Contracts x β1) + (Subsidies/Grants x β2)
or DL = R + (DM × β) + (C × β1) + ($ × β2)
The Dreck Equation would actually need to be a matrix capturing agencies individually as well as recognizing variations in the burdens of their individual dreck components; not a mere average. This discussion aims only at countdown and launch.
Term 1: Rulemaking Vector in the Dreck Equation
The term “R” is simply the 3,000 or so rules published in the Federal Register each solar system year (sometimes fewer under Trump administration). For modeling, analysts might use an average over 10 years, or the prior average of the party in power to loosely capture a Trump deregulatory or Biden regulatory culture, respectively. Researchers could isolate rules from select agencies, narrow exploratory emphasis to significant rules, or some other interest. One could also expand “R” terms to investigate the likes of number of new core priorities or policy imperatives a particular administration might intend to address with rulemaking (for example, infrastructure or immigration policy). Other approaches might emphasize number of new proposed rules, the chance the proposal is finalized, fractions of rules repealed, fraction of rules deregulatory, and so forth. These are all important, but for our first crude pass we’ll just stick with “R,” knowing that rules vary infinitely in their effects and aren’t inherently additive.
If notice and comment rules fully captured regulation and intervention in the economy, there would be no Dreck Equation. Despite being the most commented-upon and analyzed when it comes to costs and burdens, ordinary shiny-object notice and comment rules may comprise the least of federal intervention. Where the Drake equation depicts the bottlenecks that narrow probabilities of life for an entire galaxy, Dreck is adding back the extant uncounted alien rules, those whose burden’s origin is otherwise than the agency’s rulemaking process.
Dreck is intended to highlight that rules are not alone in the regulatory universe, and urge that policymakers recognize and be held to account for the laundering of regulation by non-rule means to influence outcomes or inflict obligations, whether intentional or not. These will include the big bang of guidance documents and policy statements, the procurement and contracting hypergiant, and astronomical spending and subsidies—for starters.
Term 2: The Regulatory Dark Matter Vector in the Dreck Equation (DM × β)
Unlike rules (R) in term one, there’s no centralized or mandatory reporting structure for guidance documents, policy statements, bulletins, circulars, memoranda, manuals, letters, advisory opinions, administrative interpretations and other assorted variants of regulatory dark matter. Therefore, the numerical quantity of “DM” is unknown, as of course is how it all translates into rule equivalents. Guidance can proliferate since it skips the formal notice-and-comment process, perhaps deliberately so. It’s just easier. The Regulatory Group asserts that “In most agencies, the volume of guidance material usually far exceeds the volume of legally enforceable regulations,” but one finds no official reckoning, making guidance worthy of the “dark matter” moniker.
For our Dreck purposes, the estimated or expected number of guidance documents (DM) can be multiplied by the probability (β) that guidance on the whole acts like a “rule” (such as 0.3 for 30 percent chance affected parties treat the missive as a must-follow) to “tally” rule equivalents. For simple reference, a weighting of 0.1 would imply that 10 guidance documents are equivalent to one rule. We’re talking gross numbers here but naturally a better treatment would consist of guidance by agency and type utilizing appropriate probabilities (the “matrix” referred to above, to be invented by future galaxy-brains).
While estimates for the amount of guidance in existence or birthed yearly may not be as speculative as extrasolar planetary life, the magnitude remains bathed in the radiation of indifference. To begin exploration of this space, regu-nauts should know that even in the wake of Joe Biden’s recission of Trump’s executive order 13891 (“Promoting the Rule of Law Through Improved Agency Guidance Documents”) requiring agency online portals, one can still access a subset of over 108,000 documents, up from a few thousand a decade ago. The Department of Health and Human Services (HHS), including the Centers for Medicare and Medicaid Services and the Food and Drug Administration, can issue thousands of guidance documents yearly. The likes of Environmental Protection Agency (EPA) environmental compliance guidance and Department of Labor (DOL) advisories are also prolific. The list goes on.
The weighting beta (β) for the entire inventory of guidance in terms of impact, scope or enforceability is even more unknowable than the numerical inventory itself, but that’s why Dreck is here, to speculate and urge policymakers to cope with this neglected frontier.
In terms of weighting guidance, at one extreme, purely advisory or informational guidance—which is supposed to describe the totality—would be close to zero.
But some guidance can be high-gravitational, de facto binding with rule-like effects. Such guidance could be weighted closer to one (β of, say, 0.8–0.9). Examples might include Department of Education “Dear Colleague” letters, or EPA guidance tied to permitting giving the impression of being binding and enforceable due to the threat of audits or fines, such as EPA “Waters of the United States” (WOTUS) guidance interpreting the Clean Water Act. In tax policy, the Internal Revenue Service relies heavily on notices attempting to interpret tax laws and clarify compliance for business and individual taxpayers who tend to treat them as binding despite nominal non-regulatory status. In immigration policy, Deferred Action for Childhood arrivals was implemented through a mere Department of Homeland Security memorandum that Trump ultimately could not reverse.
Other guidance might be regarded as more moderately gravitational (β of 0.4–0.7, let’s say), such as labor and employment announcements on workplace policies, wage standards and anti-discrimination enforcement. The DOL’s administrator interpretations on independent contractor status and franchising policy had significant implications for gig workers and small businesses that are still being ironed out. Healthcare policy guidance addressing issues like drug approvals, reimbursement policies, or pandemic emergency measures might fit here. On the other hand, healthcare guidance can be enforceable and approach a rule-equivalent β of 1.0 if tied to funding mechanisms like Medicare or Medicaid. Financial regulators also liberally issue guidance on risk and, consumer protections and in endeavors such as payday loans.
Term 3: The Contracting/Procurement Vector in the Dreck Equation (C × β1)
When an agency uses a contractor to fulfill a project or provide a service, the terms of that contract may include regulatory compliance requirements such as environmental or labor adherences. These can be enforced through the contract itself, committed to by the recipient(s) in response to the conditions attending a Notice of Funding Opportunity (NOFO) or other avenues. The contractor assumes responsibility for adhering to “regulations,” but the agency’s public notice and comment rulemaking is not involved. The $42 billion “BEAD” (Broadband Equity, Access, and Deployment) program administered by the Department of Commerce’s National Telecommunications and Information Administration is a striking example.
Thise vector is really a category of dark matter, but the presence of the massive federal contracting and acquisition regime (that boasts occasionally of being the “world’s largest purchaser of goods and services”) lends itself to isolating it conceptually. The GAO notes that the federal government committed to $755 billion in contracts in fiscal year 2024. One important DOGE (Department of Government Efficiency) legacy has been the raising of awareness of the number of contracts and their costs. Along with their number, the β1 weighting can help portray the proportion of the overall contract load that includes or induces rule-like terms (such as a probability overall of 0.2 for a 20 percent chance). Every agency and every contract will be different, of course.
Term 4: The Subsidies/Grants Vector in the Dreck Equation ($ × β2)
Recent legislation – such as the CARES Act, the Infrastructure Investment and Jobs Act, the Inflation Act and the CHIPS and Science Act – entails spending that is highly regulatory and interventionist (not to mention in disregard of enumerated powers) even before downstream agencies begin writing rules. The U.S. Grants website points to “38,302 funding programs and $1,000,090.45B allocated funding to date,” and the presence of over 78,000 “funding and grant opportunities.” Meanwhile, in a newly updated report, the Congressional Research Service affirms that “In FY2024, the federal government provided an estimated $1.1 trillion to state and local governments in federal grants, funding a wide range of public policy initiatives such as health care, transportation, income security, education, job training, social services, community development, and environmental protection.” That’s over a trillion dollars in one year alone, and each of those categories sports their own sets of often regulatory conditions to receive funding.
While there is no direct way of translating the number of grants or the dollars into a countable numerical rule equivalents, the chance (β2) that dispensations on the whole have rule-like conditions (such as 0.1 for a conservative 10 percent chance) can be applied to the number (or dollar amounts of) of grants, subsidies and funding awards ($) for exploration. The point is to at least stop disregarding potential rule-making vectors.
Outer Space Explorations: Other Vectors Of The Regulatory Big Bang
The foregoing is intended to set policymakers on the path to recognizing a sweep of regulation/intervention and displacement of free competitive enterprise far more substantial than that captured in notice and comment regulation, and to do something about it.
There is much more to add to this simple Dreck Equation, however. Tariffs, government loans, antitrust regulation, green treaty sign-ons, prescriptive R&D, government takeovers of swaths of retirement and health care, and public-private partnerships (PPPs) are – like all the foregoing – rarely recognized as regulation but deserving of their on rule-equivalency β transformer regime.
In PPPs, for example, privatizations (such as of infrastructure grids and government-owned lands,) that should have long since been achieved under a system of free enterprise and limited government are abandoned and replaced by the fusing of public and private sector entities to fulfill government pursuits. That makes future light-touch regulation even more difficult and unlikely. The emergence of smart cities is particularly vulnerable to such regulatory capture. Ultimately, Washington may simply elect to govern a sector outright, such as in space projects, leaving no privatization alternative intact for our descendants. This points up one of the flaws in cost-benefit analysis in conventional regulation; if certain parties want government to fully control a sector, recognizing incremental regulation as costly simply does not figure into the worldview (a New York mayoral candidate’s call for government-owned grocery stores illustrates an example of this phenomenon).
The Dreck Equation is an appeal to policymakers to recognize that unwarranted regulation of every sort, not just notice and comment but realms beyond can sacrifice startups, employment and wealth creation. Looming on the event horizon is the potential for regulatory “dark energy” enabled by the Internet of Things, exemplified by remote automobile disabling technology birthed in the IIJA. Businesses and homes are just as vulnerable.
The Dreck Equation as Policy Warp Drive
Naturally, the β weighting actor shifts upward when administrations are inclined to treat guidance as binding (such as Biden’s numerous DEI initiatives). Conversely, these higher-β rule-like features can be wrestled downward toward 0.0 or 0.1 by motivated policymakers. Judicial scrutiny such as recent SCOTUS decisions limiting agency authority can have similar liberating effect. Congress’s most important steps entail abolishing agencies, banning private aid, an emergency law banning sub-regulatory guidance, ending antitrust regulation, disavowing and restricting PPPs and other forms of business model control, terminating grants-in-aid and leaving funds in the states where they originated, and more.
Incremental steps to lessen β include legislation like the Guidance Out of Darkness (GOOD Act), the Guidance Clarity Act, and a genus-and-species classification system for guidance (like the U.S. Code for laws and the CFR for rules). Executive orders, such as a strengthened re-issue of Trump’s 13891 purging, reducing use of, and disclosing guidance are important. Executive actions reinterpreting rules like WOTUS or emissions standards are options, avoiding lengthy rulemaking battles and legal challenges with the same fervor usually found on the other side. Deregulatory guidance prioritizing flexibility or waivers for businesses, streamlined approvals or eased compliance burdens all reduce their respective sectoral βs, and ultimately the universal one captured in the simple, general Dreck Load. But the congressional actions are most important for permanent change.
This author’s annual Ten Thousand Commandments report, despite typical characterizations, is intended to depict not regulatory costs, but what we don’t know about regulatory costs. Similarly, the Dreck Equation does not capture all intervention but is intended to inspire policymakers and interested observers to recognize rulemaking equivalents and end their abuse, and for galaxy brains out there to take Dreck Load transparency to the next dimension and help them in that quest.