Can Trump’s DOGE team outmaneuver regulatory dark matter?
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As Donald Trump prepares for a second term, his administration inherits a far more expansive regulatory state than it did in 2017.
As explored today in Forbes, during that first term, Trump’s Executive Order 13,891 (Promoting the Rule of Law Through Improved Agency Guidance Documents) sought to curb the proliferation of agency guidance documents, policy statements, memoranda, circulars and other forms of regulatory dark matter by requiring that agencies publish these documents on centralized online portals, plus write rules to protect the public from potential abuse-by-guidance.
Despite this and other Trump-era streamlining, the Biden administration’s whole-of-government approach to equity, climate policy, and other economic and social initiatives we’ve often explored has aggravated the risk of ongoing overreach through these sub-regulatory directives, since they can bypass traditional rulemaking processes and continue to flourish. As detailed in a chart at Forbes (and that I maintain live here), the Biden’s administration’s rollback of these protections was blatant and explicit.
The Biden unleashing of the regulatory state requires reversal. Therefore, as Trump’s second-term team prepares to (re)introduce streamlining and oversight for spending, regulation and guidance documents, it’s critical that Congress take simultaneous action to support these initiatives and prevent future reversals. Contrary to popular belief, the ship can be turned around on a dime.
Legislative actions should start with the Guidance Out of Darkness (GOOD) Act, which would require that agencies make guidance documents accessible in a centralized format much as Trump’s executive order on disclosure had done. But that really is just the beginning of a project that should lead with terminating departments, agencies, commissions, and programs along with individual rules and guidance. Congress should also reaffirm its authority to review and approve significant guidance through the Congressional Review Act, and it should require that significant guidance be included in the twice-yearly Unified Agenda of Federal Regulatory Actions.
We can go on: guidance documents should be categorized as either “regulatory” or “deregulatory,” just as Trump had done with regulation. Guidance could also be clearly identified by a unique code, akin to the regulation identifier numbers used for formal rules.
Broadly, Congress must take steps to prevent the abuse of guidance documents—as well as, of course, spending and regulation—during crises. Recent years have shown how emergency declarations can be used to bypass traditional legislative checks. Among other provisions, an Abuse-of-Crisis Prevention Act would place limits on guidance issued during emergencies without explicit statutory authority, as well as limit emergency declarations as such.
Regulatory reforms appear poised to take center stage in the next administration. While not as prominent, addressing sub-regulatory guidance will be the key to maintaining transparency, accountability, and rule of law. Without curbing regulatory dark matter in a high-profile way, the second Trump administration’s reforms can easily be strategically derailed later on, leaving the administrative state free to expand unchecked.
For more, see:
“Trump/DOGE: To End The Rule Of Flaw, Tackle Regulatory Dark Matter,” Forbes
“An Emergency Law to Extinguish Regulatory Dark Matter,” CEI