America Has Too Many Laws
22 min read
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.
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.
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.
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.
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.
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. 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.
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.
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.
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.”)
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.
Not only have our laws grown rapidly in recent years; so have the punishments they carry. You might think that federal criminal laws are reserved for the worst of the worst—individuals who have committed acts so egregious that they merit the attention not just of state authorities but of federal authorities, and not just civil fines but potential prison time. But if that’s your intuition, ask yourself this question: How many federal crimes do you think we have these days?
It turns out no one knows. Yes, every few years some enterprising academic or government official sets out to count them. They devote considerable resources and time (often years) to the task. But in the end, they come up short.
In 1982, the Department of Justice undertook what stands as maybe the most comprehensive count to date. A lawyer spent more than two years reading the U.S. Code—at that time, some 23,000 pages. The best the lawyer could say was that there were about 3,000 federal crimes.
Today, the U.S. Code is roughly twice the length it was in 1982, and contemporary guesses put the number of federal crimes north of 5,000. As the American Bar Association has said, “Whatever the exact number of crimes that comprise today’s ‘federal criminal law,’ it is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”
Part of the reason no one can easily count the number of federal crimes is that our federal criminal code was “not planned; it just grew,” as Ronald Gainer, a retired Justice Department official, puts it. We do not have any single place to which people can turn to discern what our criminal laws prohibit. Sure, there’s Title 18 of the U.S. Code, “Crimes and Criminal Procedure.” But in truth, criminal laws are scattered here and there throughout various federal statutory titles and sections, the product of different pieces of legislation and different Congresses. Really, our federal criminal law is, Gainer writes, “a loose assemblage of … components that were built hastily to respond to perceptions of need and to perceptions of the popular will.”
That’s not the only confounding factor, though. Many federal criminal statutes overlap entirely, are duplicative in part, or, when juxtaposed, raise perplexing questions about what they mean. Take fraud. We have a federal mail-fraud law. We have a federal wire-fraud law. We have federal bribery and illegal-gratuities laws. We also have a federal law forbidding the deprivation of “honest services,” though no one is exactly sure what it does (or does not) add to all those other laws about fraud. On top of all this, more new laws criminalizing fraud are proposed during just about every session of Congress.
Once more, Congress’s output represents just the tip of the iceberg. Our administrative agencies don’t just turn out rules with civil penalties attached to them; every year, they generate more and more rules carrying criminal sanctions as well. How many? Here again, no one seems sure. But estimates suggest that at least 300,000 federal-agency regulations carry criminal sanctions today.
If you were to sit down and read through all of our criminal laws and regulations—or at least flip through them—you would find plenty of surprises. You would learn, for example, that it’s a federal crime to damage a government-owned lamp in Washington, D.C.; consult with a known pirate; or advertise wine by suggesting its intoxicating qualities.
The truth is, we now have so many federal criminal laws covering so many things that the legal scholar John Baker suggests that “there is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”
Numbers tell part of the story, but only a part. Today, the law touches our lives in very different ways than it once did.
In the past, the rules that governed what happened in our homes, families, houses of worship, and schools were found less in law than in custom or were left to private agreement and individual judgment. Even in the areas of life where law has long played a larger role, its character has changed. Once, most of our law came from local and state authorities; now federal law often dominates.
Consider just a few examples here. In the past, a seventh grader who traded burps for laughs in class might have been sent to the principal’s office; these days, law-enforcement officers may make an arrest. A 24-year-old who downloads academic articles that don’t belong to him isn’t just reprimanded; now we threaten him with decades in federal prison. On a more systemic scale, consider that for most of our history, responsibility for educating the young and setting public-school policy rested almost completely in the hands of parents and local and state officials. Until 1979, the federal government didn’t even have a Cabinet-level Department of Education. Now that federal agency employs more than 4,000 people and has an annual budget of almost $70 billion. Although it shares much of that money with states and local schools, often it does so on the condition that they comply with an ever-growing list of federal mandates.
What’s responsible for the changing character of our law? No doubt it’s a complicated story, and we live in a complex world. But just consider what America looked like when Alexis de Tocqueville traveled the country in the 1830s. As the historian Niall Ferguson has observed, Tocqueville “marveled” at the way early Americans “preferred voluntary association to government regulation.” As Tocqueville himself recorded, “not only do they have commercial and industrial associations … they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fetes, to found seminaries, to build inns, to raise churches, to distribute books … [and] create hospitals, prisons, schools.” In short, Tocqueville concluded, “everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States.”
These days, many of those old civic bonds are fraying. In his book Bowling Alone, Robert Putnam reports that “both civic engagement and organizational involvement experienced marked declines during the second half of the twentieth century.” In recent years, those declines have “continued uninterrupted.” A few decades ago, more than 70 percent of Americans were members of a church, synagogue, or mosque; today fewer than half are. According to the Elks, a fraternal order that includes six presidents among its past members, the organization has “struggled” in recent years “with [a] massive decline in membership.” The Freemasons have shed 3 million from their ranks since the 1950s—a 75 percent drop.
Accompanying this decline in civic association, we have experienced a profound decline in trust in one another. We are less inclined to respect or even tolerate different ideas about how to live, raise children, and pray. Studies show that we consider those who disagree with our own political views to be “immoral” or “unintelligent.” In one recent survey by the Center for Politics at the University of Virginia, roughly half of voters expressed the view that individuals who support “the other party” pose “threats to the American way of life”; about 40 percent said the use of violence may be warranted to “prevent” those who hold competing views “from achieving their goals.” Rather than trust individuals to judge what is best for our own happiness, health, and safety, we have become comfortable doing what the “experts” tell us—and comfortable with forcing others to do the same.
It’s hard not to wonder whether the explosion in our laws owes at least something to these developments. After all, when trust in individual judgment, civic institutions, and social norms fades, where else is there to look for answers but the law? Perhaps, too, the law does more, and does more at the national level, because it can. Communication across the continent has become a simple thing; so has the capacity to store and search large amounts of information and monitor the movement of individuals—all of which allows authorities to direct and track compliance with their rules in ways that were unthinkable even a generation ago.
Whatever the combination of causes, one thing seems clear: If in this country law has always been king, its empire has never been so expansive. More than ever, we turn to the law to address any problem we perceive. More than ever, we are inclined to use national authorities to dictate a single answer for the whole country. More than ever, we are willing to criminalize conduct with which we disagree. And more than ever, if elected officials seem slow to act, we look to other sources of authority to fill the void.
The explosion of law has taken a very real toll on the lives of everyday Americans. Their stories must be told.
Early one morning in 2010, Sandra Yates was doing laundry when she noticed something alarming: Seven agents in bullet-proof vests, hands primed on holstered guns, were approaching her bungalow on Anna Maria Island, Florida.
It turned out they were looking for her husband.
“He’s out crabbing,” she told them, mystified by what they could want with John, a 58-year-old commercial fisherman who had worked his way up from deckhand to captain of his own small crew. Sandra and John had met as teenagers 36 years earlier in Ohio. John’s father owned a bait shop, and together father and son spent many weekends fishing on Lake Erie. As Sandra put it, John “more or less grew up on the water.” The couple married, had a child, and moved to Florida to follow family and stake out a new life. John got a job doing what he loved most—fishing—while Sandra worked as a paralegal. By the time the agents showed up, the couple had lived in Florida for more than 28 years.
When Sandra called John to let him know that officers were looking for him, he was just as confused as she was. After all, he had a nearly blemish-free record as a fisherman, and he couldn’t remember having done anything that might interest the authorities. John remained just as confused when he returned to shore and agents handcuffed and transported him two hours away to Fort Myers for booking.
There, John finally learned the charges against him. Among other things, he stood accused of violating the federal Sarbanes-Oxley Act and faced a potential term of 20 years in prison.
Now, you might be wondering: Sarbanes-Oxley? Isn’t that some sort of law about financial crimes? If you poke around the internet (as Sandra did late into the night after her husband’s arrest), you will find the law described as being designed “to help protect investors from fraudulent financial reporting by corporations.” You will also learn that Congress adopted the law after a financial scandal brought down the accounting firm Arthur Andersen. Some say the firm engaged in a document-shredding frenzy after being tipped off about an impending federal investigation into work it had performed for its client Enron.
All of that might lead you to ask: What does any of this have to do with a small-time fisherman?
The story starts back in 2007. One day, while John was fishing in the Gulf of Mexico on his boat, The Miss Katie, a state wildlife agent (cross-deputized by federal authorities) came alongside. As John tells it, the agent boarded the boat for a “safety inspection” and then asked John to open up the fish hold. The agent said he wanted to measure the fish—all 2,000 pounds of them.
After spending hours rummaging through the pile, the agent declared his verdict. According to his measurements (which John disputed), 72 red grouper were under the 20-inch harvesting minimum set by then-current federal regulations. True, even by the agent’s count only three fish were under 19 inches, and each was at least 18.75 inches. But all the same, 72 undersize fish it was. The agent ordered John to store the undersize fish in separate crates, issued a citation, and left.
After John returned to dock a few days later, the agent measured the fish again. This time, though, the agent found 69 undersize fish, not 72. What’s more, the agent’s individual measurements didn’t quite match those he had taken days earlier while on board. From that and other evidence, the agent grew suspicious that the fish at the dock were not the same fish he had measured at sea. Still, nothing seemed to come of it. John didn’t hear anything more from authorities for almost three years—that is, until the day armed agents showed up at his front door.
At this point, you still might be wondering what any of this has to do with the Sarbanes-Oxley Act. As John learned after his arrest, that law was written in broad terms. The act doesn’t just make it unlawful to destroy financial records or documents “with the intent to impede, obstruct, or influence” a federal investigation. It also prohibits the destruction of any other “tangible object” for the same purpose.
And, according to the government, John had done just that. The government’s theory ran this way: John or a member of his crew must have thrown overboard the undersize fish the agent had identified while out on the water. Before returning to port, the crew must have then replaced those fish with new (and still undersize?) substitutes from the remaining catch. On the basis of this theory, the government argued, John had destroyed “tangible objects”—fish—with the intent of impeding a federal investigation.
John saw things differently. By his account, it was hardly surprising that the agent’s two sets of measurements didn’t quite align. Fish expand and contract when they are moved into and out of cool storage and onto hot decks or docks. According to John, the agent wasn’t exactly a fish-measuring expert, either; among other things, he didn’t properly account for the lengthy lower jaws of red grouper. To this day, John considers the government’s theory that he threw undersize fish overboard only to replace them with new, still undersize substitutes “about the … stupidest thing I’ve ever heard.”
Stupid or not, it turned John and Sandra’s life upside down. In addition to facing prison time, John lost his job—no one would hire a potential felon. He was “contaminated,” as Sandra put it. The couple lost their principal source of income and, soon, their house. They stopped taking family vacations with the grandchildren they were raising and tried to make ends meet by opening a used-furniture store. John refurbished furniture and Sandra painted it. To prepare for trial, Sandra stayed up late into the night researching the law and corresponding with attorneys and agency officials.
It was tough going. The family’s ordeal was not made any easier by the knowledge that federal officials had recently revised their regulations. When the agent boarded John’s boat in 2007, the minimum harvesting size for red grouper was 20 inches. But by the time John was arrested three years later, that had changed. The new rule? Eighteen inches. According to the agent’s measurements, not a single one of John’s fish was that small.
Still, the government pressed ahead with its case. In time, prosecutors offered a plea deal that would allow John to plead guilty to an offense involving the forcible opposition of a federal officer. But John saw no basis for that charge. He wanted to clear his name and insisted on standing trial.
It did not go well. More than a year after his arrest and four years after the agent boarded his boat, a jury found John guilty of the Sarbanes-Oxley offense. At sentencing, the court imposed a term of 30 days behind bars (prosecutors had asked for closer to two years). The court also sentenced John to three years of supervised release, ordered him to submit a DNA sample, and subjected him to other restrictions. The prosecution team issued a press release touting its victory.
By now, it was nearing Christmas 2011. John sought permission to report to prison after the holiday so he could spend time with his grandchildren, 8 and 12 years old at the time. The request was denied. So John sat in prison over Christmas. What’s more, at age 59 he was required to wear an ankle bracelet marking him as an escape risk.
After serving his sentence, John was ready to move on. The case had consumed his family for too long. But Sandra was determined to appeal. She didn’t want government officials to “do to someone else what they did to us.” Even when their appeal failed, Sandra wouldn’t give up. She persuaded John and his attorney (today, a federal judge) to petition the Supreme Court to review John’s Sarbanes-Oxley conviction. It was the longest of long shots—the Supreme Court agrees to hear only about 1 percent of the thousands of petitions it receives every year.
But seven years after that agent boarded The Miss Katie, John and Sandra finally felt a sliver of hope: In 2014, the Court announced that it would hear the case.
Nearly a year later, John was working in the couple’s furniture shop when he learned of the Supreme Court’s decision. By the margin of just a single vote, the Court had ruled in his favor. As the majority saw it, the Sarbanes-Oxley Act may prohibit the destruction of logbooks, spreadsheets, financial records, and other objects designed “to record or preserve information.” But for all its expansiveness, the law does not reach red grouper thrown overboard.
In a sense, it was a huge victory for the Yates family. The highest court in the land had overturned John’s Sarbanes-Oxley conviction. He and Sandra had won all the vindication our legal system can afford.
Still, you might forgive them for seeing things differently. The family’s ordeal had lasted eight years. They had endured proceedings before three courts and 13 different judges. “I feel good,” John said after the Court’s decision. “But you’ve got to look at it from my situation. I’ve already done the time. I’ve already paid the price. I lost a lot of wages because of this”—at least $600,000, he estimates. Really, as Sandra said, “we lost everything we had.” John hasn’t been back on a commercial fishing boat since his conviction. The couple now lives in a triple-wide trailer and depends on Social Security income and the extra jobs Sandra manages to get. Sandra estimates that taxpayers spent as much as $11 million on the prosecution of the case.
What happened to the federal officials who pursued John for all those years? After complaints emerged of “heavy-handed and unfair enforcement” against other fishermen like John, the inspector general of the Department of Commerce launched an internal investigation. His final report dryly concluded that the agency’s enforcement officials had created a “highly-charged regulatory climate and dysfunctional relationship between [the agency] and the fishing industry.” But, he added, the investigation hadn’t been easy. It seems that a key enforcement official had destroyed many of his files during it. (An anonymous whistleblower described a “shredding party.”) We can find no public record of criminal charges being brought against anyone for the destruction of those tangible objects. But when announcing the department’s findings to Congress, the inspector general said the quiet part out loud: How do you think enforcement officials would have reacted “if a fishing company they were investigating had done the same thing”?
In 2012, while John was appealing his case, Sandra pleaded her family’s cause to the government this way:
We are raising two grandchildren. We are simple people. The actions of these agents were damaging. These children have been affected also. Monies that would have been for them are gone. They have not even been afforded even family vacations any more … Our lives are forever changed by this, and I don’t believe these officers give a hoot who they hurt or why. [John] is a sixty-year-old man that has been beat up by these rogue agents. Jobs are tough enough to get when you are in your prime. He has been reduced to odd jobs. I am the primary provider for the family and I am old and tired, but I will not lie down or give up. We are meager people and don’t want much, but fair and professional treatment should be mandatory for all.
Sandra’s words are powerful, maybe even more so when you consider the fact that there was nothing particularly unusual about John’s case, at least from one point of view. Federal-agency officials had adopted a regulation setting the minimum harvesting size at 20 inches, only later changing it to 18 inches. Another agency official concluded that John had 72 undersize fish on board and 69 at the dock. Meanwhile, Congress had adopted a broad law forbidding the intentional destruction of any “tangible object” in the face of a federal investigation. Without a doubt, a good argument could be made that John’s alleged conduct violated this mix of statutory and regulatory rules.
From another perspective, though, Sandra and John’s experience invites us to consider how well we are doing as a nation in our aspiration to live under the rule of law where ordinary people have room to grow, plan, and make their own way. Yes, our Founders desperately wanted a nation of written laws. But from their study of history, they also appreciated the dangers that follow when lawmaking becomes too easy, when it is a task too far removed from the people, and when laws become too hard to find and too difficult to understand. The Roman emperor Caligula used to post his new laws on columns so tall and in a hand so small that the people could not read them. The whole point was to ensure that people lived in fear—the most powerful of a tyrant’s weapons. Our Founders wanted no part of that for us. As much as they revered written laws, they also knew that when we turn to law to solve every problem and answer humanity’s age-old debates about how we should live, raise our children, and pray, we invite a Leviathan into our lives.
This essay was adapted from Over Ruled: The Human Toll Of Too Much Law.
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