The Chilling Effect of Dark Matter

Here at CEI, we know all about the chilling effect of executive power. We also know quite a bit about the extent to which the executive uses what we call “regulatory dark matter” to go beyond the normal legislative and rulemaking processes to impose more burdens on citizens and businesses. Today we have an example of both happening in the same issue, the Department of Labor’s final Fiduciary Rule.

The rule will place huge burdens on the insurance industry, and will likely lead to middle class Americans losing access to personal investment advice (and all of this is supposed to be in their interests). Normally when a government agency imposes a huge burden on an industry at a whim, the response by those disadvantaged is to turn to the courts to redress their grievances (which is the entire point of the court system).

Today, however, we learn from a PoliticoPro report (subscription needed) that the industry is concerned that a court case will invite reprisals from the Department of Labor in the shape of a lack of guidance favorable to the industry:

Additionally, a lawsuit might make the Labor Department less willing to issue interpretive guidance that would help businesses implement the rule, the memo said.

It is surely an implicit abuse of power if an agency, owing to its discretionary power to issue interpretative guidance on a rule, is able to deter affected parties from pursuing a redress of grievance through the court system.

It appears that America has regressed to a different sort of court system—the court of a medieval king, where the favor of his court officials was the best way to secure benefits. It is not just. It is not democratic. And it sure isn’t American.