Court decision overshadows quiet rule-making week


If one was looking for the most notable regulatory development of the past week, one would be wise to search the appellate court docket instead of the Federal Register. There were nine regulations with some measurable impact. None, however, exceeded $10 million in costs. A proposed rule by the Department of Transportation (DOT) regarding the disclosure of airfare fares provided the “highlight” of the week. Across the regulations, the agencies posted $16.2 million in total net costs and added 155,630 annual hours of paperwork load.


  • Proposed rules: 42
  • Final Rules: 55
  • 2022 Total Pages: 64,041
  • 2022 final rule costs: $108.1 billion
  • Proposed rule costs for 2022: $124.6 billion


The nominally most significant rulemaking this low-key week was DOT proposed rule on “Improving the transparency of airline ancillary service fees”. The proposal seeks:

Require U.S. carriers, foreign carriers, and ticket agents to clearly disclose passenger-specific or itinerary-specific baggage fees, change fees, and cancellation fees to consumers each time they provide them with fare and schedule information for flights to, within, and from the United States.

DOT’s cost-benefit analysis of the regulation’s potential impact is largely qualitative, citing “lack of data and other significant uncertainties.” However, the affected airlines must affirmatively inform DOT of their compliance with the measure. The agency estimates that the administrative burdens involved with those reports would involve approximately 116,000 hours of paperwork annually with $3.1 million in proportional costs.


As we have seen from executive orders and memorandums, the Biden Administration is sure to provide many contrasts to the Trump Administration on the regulatory front. And while there is a general expectation that the current administration will seek to broadly restore Obama-style regulatory actions, there will also be areas where it will chart its own course. Since AAF RegRodeo data goes back to 2005, it is possible to provide weekly updates on how high-level trends in President Biden’s regulatory record track those of his two most recent predecessors. The following table provides the cumulative totals of the final rules that contain any quantified economic impact of each administration to this point in their respective terms.

Since the airfare rulemaking discussed above is still only a proposed rule, very little happened on the final rule front for the Biden Administration last week. The Trump administration experienced a similar period of stagnation in mid-October 2018. However, the Obama administration saw some notable developments. Costs for the Obama-era final rule increased by nearly $3.4 billion and paperwork increased by 973,000 hours. A Department of Labor rule on fiduciary disclosures provided the bulk of those costs, while a Securities and Exchange Commission rule provided most of the peak paperwork.


This week, a federal court declares the funding structure of the Consumer Financial Protection Bureau (CFPB) unconstitutional.

On October 19, the United States Court of Appeals for the Fifth Circuit issued its opinion in a case brought by payday lenders against the CFPB. The court found the CFPB’s unique funding structure to be unconstitutional and struck down a rule on payday loans.

When Congress created the CFPB as part of the Dodd-Frank Act in 2010, it sought to insulate the agency’s budget from politics by providing direct funding through the Federal Reserve (the Fed). The CFPB director simply requests the level of annual funding he deems necessary to meet the needs of the agency, and as long as that amount does not exceed 12 percent of the Fed’s operating budget, the Fed transfers the money. This structure is said to be “doubly insulated” from appropriations from Congress because not only is the CFPB not directly funded by Congress, but neither is the Federal Reserve. The Fed funds itself through interest earned on securities it owns and assessments the agency imposes on banks within the Federal Reserve system, though it has to transfer income above a certain threshold to the Treasury.

The court decided that this structure violates the Constitution’s provision that only Congress holds the power of the stock market. It also determined that Congress not only has that exclusive power, but also cannot cede it to another branch of government in the same way it did with the CFPB. The court also differentiated the structure of the Fed from that of the CFPB because, while the Fed must transfer any excess funds to the Treasury, there is no requirement for the CFPB to do that to the Fed or the Treasury; he keeps the additional funds for himself in perpetuity. .

After finding the CFPB’s funding structure unconstitutional, the court also struck down the agency’s 2017 rule that covered Payday, vehicle title, and certain high-cost installment loans. He did so not because Congress had not authorized such authority, but because “the agency lacked the means to exercise power through constitutionally appropriated funds.”

The ruling calls into question any CFPB rules as they have all been issued using the unconstitutional funding structure. However, the last word will probably come from the Supreme Court in the future.


Since January 1, the federal government has posted $232.7 billion in total net costs (with $108.1 billion in new costs from finalized rules) and 137.1 million hours of annual net increases in workload. paperwork (with 61.8 million hours in increases from the final rules).


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