Resisting the deep state

Dry as the desert, and about as easy to interpret as Hammurabi’s Code: That’s how many Americans might describe the Federal Register. It’s an online database chock-full of new rules and regulations issued by the U.S. government, and it publishes every workday, courtesy of the National Archives and Records Administration.

Attorney Rachel Morrison finds such reading fascinating. You could even call her a “regulations wrangler.” She works for the Ethics and Public Policy Center (EPPC), a Washington, D.C., think tank focused on applying Judeo-Christian values to politics. Along with her four-member legal policy team, Morrison is determined to stem the tide of liberal regulations flooding the Register. And they have their work cut out for them.

More than 400 official agencies and subagencies, including heavyweights like the Department of Health and Human Services and the Department of Education, are involved in the rulemaking, notify-the-public-by-the-Register business. Many of the rules these agencies try to pass involve issues members of Congress won’t touch, in part because their constituents don’t want them to. But the rulemakers don’t answer to voters, giving them dictator-like influence over a wide swath of American life.

Before joining the EPPC as a fellow in 2021, Morrison clerked in the U.S. Court of Federal Claims and served as an attorney adviser for the Equal Employment Opportunity Commission. It was good preparation for the work she does today, attempting to hold federal agencies accountable.

It’s a David-and-Goliath battle, one that has Morrison valuing her undergraduate math degree, especially when she’s analyzing the costs and benefits of regulations. “Being number literate helps me understand certain arguments or gaps in arguments.”

She’s good with comparisons, too. Here’s one from 2023, a year when Congress passed a total of 68 bills. During that same period, federal agencies—staffed by unelected bureaucrats and headed mostly by partisan presidential appointees—finalized 3,018 new regulations. “That’s over 44 times the amount of laws passed by Congress,” Morrison stresses.

But regulations are, in essence, laws.

They affect American life in myriad ways, from the type of lightbulbs in lamps to the kind of programming on the radio. But when Morrison is at home in Falls Church, Va., hunkered down over her MacBook Air, she’s studying a specific subset of regulations. The kind that affect healthcare providers who refuse to participate in certain medical procedures based on their religious beliefs. Schools dealing with transgender ideology. Groups fighting for the unborn.

It’s no easy task. Even though the Register says wordiness isn’t the intention, it’s the practice. Since the first of January, agencies have published more than 75,540 pages of explanation for newly proposed and finally approved rules. Most of those pages are covered in small print, triple columns.

Proposed is the operative word for Morrison. A lot can change as a regulation proceeds toward finalization. During the published proposal stage, the public, as well as groups like Morrison’s team, can submit comments—positive or negative—about the rules. Morrison emphasizes anyone can comment online, right on the Register’s website. “You can submit it anonymously. It can be as short or as long as you want. It can be detailed or generic. You can respond to one aspect of the rule, or you can respond to every aspect of the rule. You can ask questions, you can share a personal story, you can attach an article. So there’s a lot of freedom in that.”

The comment period can last weeks, and once it ends, an agency can continue, modify, or withdraw its proposal. After that, a new review begins at the Office of Management and Budget. During this time, individuals or groups can meet with federal officials and express support or concerns. Only after all that can a regulation be finalized and become law.

But here’s the catch: Agencies are required to respond to comments. A June Supreme Court decision in Ohio v. Environmental Protection Agency underscored that responsi­bility: If a federal agency fails to provide a reasoned response to comments raised during the rulemaking process, a court may consider the final rule unlawful.

According to Morrison, issues like abortion, marriage, and sexuality tend to draw comments from well-organized groups on the left—overwhelmingly so. That skews perception of public support. “When the federal agencies see these comments, they can say, ‘Well, 70 percent of comments were in favor of the proposal.’”

Morrison’s fellow team member, attorney Eric Kniffin, wants to change that balance. His drive springs from a law career that’s put him in the ring for some of the biggest religious liberty fights of the past 20 years, including Burwell v. Hobby Lobby, a landmark Supreme Court decision that ruled the plaintiff didn’t have to provide abortafacient contraceptives like the morning-after pill as part of its healthcare plan. “None of the cases had to do with federal laws,” Kniffin emphasizes. “They all have to do with regulations.”

In 2012, Kniffin was at a public meeting of the Institute of Medicine when he had what he describes as a “Twilight Zone moment.”

“I watched a group of liberals openly make plans to weaponize the Affordable Care Act. They wanted to use it to push for a contraception mandate,” he remembers. They succeeded, and Christian-owned businesses like Hobby Lobby were forced to fight back in court. Kniffin witnessed a similar hijacking in 2016 when proponents used the same act to advance their transgender agenda. They sought to force doctors to perform and insurance to cover medical interventions supporting gender transitions—all under the guise that sex discrimination means gender identity discrimination.

“If there had been more of an outrage, if there had been more of a spotlight on it that said, ‘Hey, look at what they’re doing. This is going to be hugely consequential,’ maybe we could have stopped it.”

Kniffin, who lives in Colorado, left private practice to join the EPPC last year. He focuses on strategy. One goal is to write excellent public comments. Another is to build public awareness about what’s going on in Regulation World. Still, Kniffin acknowledges that their team won’t make much of a difference alone. “But if we can get other groups involved in this, too, we can amplify our voices.”

Some conservatives are hard to convince. After all, religious liberty cases are faring pretty well at the Supreme Court these days. Why not just deal with challenges that way?

Kniffin says the left loves that approach and even expects to lose in court. Because in the meantime, as cases steep during months, sometimes years, of media coverage, public opinion sways. Kniffin says that’s how they shift the Overton window, the range of policies the mainstream population deems acceptable. American policy analyst Joseph Overton proposed the concept. He said an idea’s political viability depends mainly on whether it falls within this range.

“Regulatory agencies can change the world,” Kniffin says.

That’s why he believes it’s critical to hold the government accountable earlier in that process. “What’s going on here is not agency expertise. It’s about an administration that wants a policy outcome, and it can’t get it through the lawmaking process.”

Rachel Morrison at home in Falls Church, Va. Photo by Mike Kepka/Genesis

KNIFFIN, MORRISON, AND THE REST of the EPPC accountability team work remotely. Natalie Dodson, who focuses on policy analysis, lives in a sixth-floor apartment in Alexandria, Va. She admits her friends seem more interested in her view of the Potomac than what she does for a living. “When I say I’m primarily focused on federal regulations, that’s usually where I lose them,” she explains with a laugh.

But the team’s accomplishments are no joke. It contributed to several regulation changes at the Department of Health and Human Services, including a provision acknowledging existing legal protections for religious freedom, conscience, and free speech to an “LGBTQ+” foster care rule. Another involved conscience protections for staff working with unaccompanied refugee children entitled under federal law to abortions and gender transitions.

“These rules are all based on congressional laws that have been passed, but they’ve been warped to fit the policy goals of a certain administration,” Dodson points out. “What we’re trying to do is kind of get them back in line with the actual laws that were passed in the beginning. I’m not ready to take on the whole administrative state, but this is my little way of fighting back.”

Rachel Morrison says a general reticence to “take on the administrative state” has hurt the right. “The left has been very good at this. They’re lockstep. They’ve been doing this for years. But folks on the right say, ‘The administrative state is unconstitutional, so we’re not going to engage.’ But until you change the process, you’re only shooting yourself in the foot if you’re not engaging in the process.”

And engagement is up.

At a recent talk on religious liberty and regulations, Morrison asked audience members if they had ever submitted a public comment to the Federal Register.

“Three years ago, there might have been a couple of people that raised their hand. But there was a good percentage at this event that had submitted comments. I think some of it is just education on the process itself.”

Morrison sees a change on the government side, too. She believes agencies are realizing they can’t just ignore religious liberty issues. “Some of it could be litigation prevention. It’s not sufficient, but it’s a positive first step.”

Kniffin says the team goes into these fights knowing the truth is on their side. “We’re not just fighting for the correct answer on a given issue of sexual morality or sexual identity. We’re also fighting for what’s genuinely good for people.”