The Constitution of the United States is clear: all laws should be passed by the Congress of the United States.

And yet, there are two sets of laws in the United States: the United States Code (USC) and the Code of Federal Regulations (CFR).

The United States Code is what Congress actually passed. The Code of Federal Regulations is what the agencies of the Executive Branch write and pass by themselves, which is unconstitutional.

Why can this happen? Because of two things:

  1. Congress passing the buck to agencies by saying that agencies can write their own regulations.
  2. The Chevron deference.

So basically, Congress passes the buck, and the courts uphold that dereliction of duty, for that is what it is.

This causes problems because the size of CFR is a good 10 times the size of USC, and USC is no slouch. No one can know, much less follow, all of those laws. That is the basis of such books as *Three Felonies a Day.

If Congress actually followed the Constitution, they would have to approve all of the regulations written by agencies, and we would have less than we do simply because Congress would not have enough time.

As an example of a regulation that actually hurts, I am going to use an example from one agency that has, in fact, accomplished its objective: the Federal Aviation Administration (FAA).

The FAA has managed to make our National Airspace System the safest transport system in the United States, so they have much to brag about, unlike many Federal agencies that can’t accomplish what they are supposed to do.

And yet, the FAA has made a regulation that has hurt us: the requirement for airline pilots to have 1500 hours, a regulation they wanted after the crash of Colgan Air Flight 3407. How has it hurt us? It created a pilot shortage.

Congress should not shirk its duty; it should pass a law saying that after one year, nothing in the Code of Federal Regulations will be law unless it has been added to the United States Code.