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Mapping Washington's Lawlessness

Issue Analysis

Title

Mapping Washington's Lawlessness

An Inventory of Regulatory Dark Matter 2017 Edition

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Congress passes and the President signs several dozen laws every year. Meanwhile, federal departments and agencies issue well over 3,000 regulations of varying significance. A weekday never passes without new regulations being issued or proposed. Yet beyond those rules, Congress lacks a clear grasp of the amount and cost of the thousands of executive branch and federal agency proclamations and issuances, including guidance documents, memoranda, bulletins, circulars, and letters that carry practical (if not always technically legally) binding regulatory effect. There are hundreds of “significant” agency guidance documents now in effect, plus many thousands of other such documents that are subject to little scrutiny or democratic accountability.

It has long been the case that there are far more regulations than laws. That is troublesome enough. But with tens of thousands of agency proclamations annually, agencies may articulate interpretations and pressure regulated parties to comply without an  actual formal regulation or understanding of costs, generally with judicial deference to what agencies contend, an issue of increasing concern to Congress. The result is that no one knows how much the regulatory state “weighs,” or even the number of agencies.

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.

This report is the second in an ongoing series aimed at outlining the scope of this phenomenon. It concludes with recommendations for Congress to address dark matter and the over-delegation of legislative power that has enabled it.