A game-changing Trump executive order could nuke regulatory dark matter

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In the wake of Donald Trump’s flurry of executive actions—including implementing a regulatory freeze, eradicating Biden’s diversity, equity, and inclusion (DEI) policies and staffing, and dialing back green extremism—perhaps his most anticipated move is the requirement that agencies eliminate 10 regulations for every significant new rule added.

Not to be forgotten are Trump’s game-changing executive actions during his first term targeting regulatory dark matter—the guidance documents, policy statements, and interpretations issued by unelected bureaucrats that often sidestep formal legislative procedures and oversight, thereby advancing progressive agendas. A version of Trump’s directives establishing portals to disclose dark matter, as well as public protections from guidance abuse, is likely to reappear.

While Trump’s executive actions will have an immediate effect, the broader fight against regulatory overreach requires congressional reinforcement to have a permanent effect.

Biden revoked Trump’s guidance reforms (along with the entirety of the streamlining agenda). For a more sustainable solution, Trump and Congress must work together this time to reform these practices by instituting a robust set of bans, disclosures and controls on dark matter. Not meant to be exhaustive, here are key elements of such a platform, which I detailed at Forbes:

Plank 1: A U.S. Code for regulatory dark matter

As Trump’s original guidance did—and as the Guidance Out of Darkness (GOOD) Act would do—create a portal for all guidance documents, but this time centralized rather than scattered across agencies. Like laws, rules and executive orders, these documents should sport unique identifiers, much like the Regulation Identifier Number (RIN) for rules, significantly improving transparency.

Plank 2: A Unified Agenda of Guidance

Integrate guidance documents into the regular twice-yearly Unified Agenda of federal regulations, marking them as either regulatory or deregulatory (as rules, too, should be designated). Clarity is needed regarding whether actions taken reduce, rather than expand, government control.

Plank 3: Affirm adherence to the Congressional Review Act

Agency guidance is subject to the Congressional Review Act, but the requirements are routinely disregarded. Like rules, guidance is to be submitted to both houses of Congress and the Government Accountability Office (GAO) and be subject to resolution of disapproval.

Plank 4: Disregard administrative noise

Regulatory cost estimates and other statutory requirements must be enforced. Dark matter directives (and rules, for that matter) that do not comply with the Congressional Review Act or other procedures should be treated as void.

Plank 5: Notice and comment for significant guidance

Any guidance with substantial costs should undergo public notice and comment procedures, similar to formal rulemaking.

Plank 6: Making it REINS for guidance

Require congressional approval for significant guidance, just as the Regulations from the Executive In Need of Scrutiny (REINS) Act demands for major rules. Contained in the latest version of the REINS Act, the application to controversial (rather than solely those rising to “major” status) rules and guidance should be affirmed.

Plank 7: Ban certain guidance altogether

In critical sectors like technology policy, Trump and Congress should ban the issuance of certain types of guidance altogether to prevent overreach that is already stifling innovation and economic growth. The administrative state’s claims of expertise for itself and the assertions of market failure on the part of others are highly suspect in the modern era—particularly since agencies and their “mis-guidance” are primary barriers to innovation in new institutions of property rights and infrastructures necessary for the future.

Addressing notice-and-comment regulation is necessary, but tackling guidance documents that increasingly propel the regulatory enterprise is equally if not more important. The federal government is so vast in terms of spending and contracting that progressive policy can and is being laundered through the exploitation of guidance.

Trump will no doubt take action again to address guidance documents. This time, those reforms must be backed up by permanent measures disciplining regulatory dark matter and ensuring that future administrations cannot exploit it to advance unchecked whole-of-government agendas.

For deeper dives, see:

·      “A Banger Trump Executive Order Abolishing Regulatory Dark Matter,” Forbes, January 29, 2025 

·      “What Works And What Doesn’t In OMB’s New Guidance To Federal Agencies On Regulatory Oversight,” Forbes, June 19, 2019.

·      “A Partial Eclipse of the Administrative State: A Case for an Executive Order to Rein in Guidance Documents and other ‘Regulatory Dark Matter’,” Competitive Enterprise Institute, October 3, 2018.