decisions about which regulations to rescind will be any more normative than
prior decisions to promulgate regulations.
Another question arose after the election on whether the era of regulation,
and perhaps even compliance programs, is over. Like many reactions to the
2016 election results, this was borderline irrational. 8 The United States is
awash in regulations, and it would take enormous political will to rescind
large swatches of the federal regulatory scheme or at least a few decades to
work through laborious technocracy to materially deregulate—even at a clip
of two regulations repealed for every regulation promulgated. It is often
overlooked that Executive Order 13771, which established the two-for-one
rule, is premised on issuing a regulation not on repealing regulations outright.
By late 2017, the shredder on regulations has not seen much action.
There is another way to deal with over-regulation: non-enforcement. Non-enforcement of regulations is a type of deregulation, though the regulation
remains on the books, still threatening the regulated actor for penalties of
non-compliance if there is a change in agency opinion. Non-enforcement of
regulations (or any law, for that matter) may be a conscious strategy to
alleviate a burden on a regulated actor or it may be the result of simple lack
of resources for enforcement. There is a stark reality that that there are too
many regulations for federal agencies to audit, inspect, and enforce in toto.
A theory of regulation is a work in progress but is a central mission of the
Journal. It is our hope that every issue we publish we are a bit more along
the road of a theory of regulation and compliance. Issue II stands as a
transition collection to Issue III, which will include articles that address a
pointed question, “What is the role of a regulation that is not enforced?” In
Issue II we have explored some of the “big laws” and also looked at ethical
considerations of actors operating under big and small laws. As the Journal
moves forward into 2018 we will examine the implications of the big laws
and the small laws (however they come about) not being enforced, but
remaining on the books. The role of non-enforcement should not be
overlooked in stitching together a theory of regulation, and I would add, how
to comply with those regulations—or in the parlance of a non-enforcement
zone, whether to comply with those regulations.
In the meantime, the Center for Compliance Studies and the Journal’s
companion blog will continue to explore the activity of complying with the
big laws and small laws.
8. For what appears to be the quickly emerging consensus statement that compliance is
here to stay despite who occupies the White House, see Roy Snell, Donald Trump’s Impact
on Compliance Programs, COMPLIANCE & ETHICS BLOG (November 16, 2017),