Shining a Light on Bureaucratic ‘Dark Matter’

CEI’s latest educational video is out today, and takes on the unofficial rules that come out of the executive branch, but aren’t subject to the process and review of normal government regulation—what my colleague Wayne Crews calls “regulatory dark matter.” 

Wayne’s analogy is based on the theory of dark matter in astronomy, the idea that much of the universe is actually composed not of the stars and galaxies that we can observe, but of non-light emitting mass that is hidden from usual forms of observation. This matter has important effects on the universe, and we know that it exists, but it is easy to ignore and underestimate. So it is with many of the everyday bureaucratic functions of the federal government. Many of the documents that are produced and circulated every day by agencies have a significant impact on the freedom of Americans to buy, sell, work, and invest, but they are largely hidden from public awareness and political accountability.

In his study Mapping Washington’s Lawlessness: An Inventory of Regulatory Dark Matter, from earlier this year, Wayne lays out the basic problem with the current system:

The Administrative Procedure Act (APA) of 1946 established the process of public notice for proposed rulemakings, providing the opportunity for public input and comment before a final rule is published in the Federal Register, and a 30-day period before the rule becomes effective. But the APA’s requirement of publishing a notice of proposed rulemaking and allowing public comment does not apply to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”

In addition to non-congressional lawmaking, the executive branch sometimes declines to enforce laws passed by Congress. Prominent during the Obama administration was the July 2013 Treasury Department’s unilateral delay, first by blog post, then by IRS guidance, of the Affordable Care Act’s (ACA) employer mandate and its accompanying tax penalty for non-compliance. Then came the November 2013 declaration—first by the president during a news conference and subsequently in Department of Health and Human Services guidance material—that insurers could continue to sell non-ACA compliant health policies.

The upshot of such “regulatory dark matter” is that, without Congress actually passing a law or an APA-compliant legislative rule or regulation being issued, the federal government increasingly injects itself into our states, our communities, and our personal lives.

There are some solutions. Increasingly, regulatory reform proposals, like the Regulatory Accountability Act sponsored by Rep. Bob Goodlatte (R-VA), are including dark matter-style documents into their requirements. Current projects at the White House and specifically the Office of Management and Budget will also likely have a significant impact on the proliferation of unofficial rules. President Trump’s executive order of February 24th, “Enforcing the Regulatory Reform Agenda” and that of March 13th, “Comprehensive Plan for Reorganizing the Executive Branch” will both change the way Article II agencies carry out their responsibilities in ways that reduce the dark matter compliance burden.

See more video content from CEI at YouTube.