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Mapping Washington's Lawlessness

Issue Analysis

Title

Mapping Washington's Lawlessness

A Preliminary Inventory of "Regulatory Dark Matter"

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Congress passes and the president signs a few dozen laws every year. Meanwhile, federal departments and agencies issue well over 3,000 rules and regulations of varying significance. A weekday never passes without new regulation. Beyond those rules, however, we lack a clear grasp on the amount and cost of the many thousands of executive branch and federal agency proclamations and issuances, including memos, guidance documents, bulletins, circulars, and announcements with practical regulatory effect. There are hundreds of “significant” agency guidance documents now in effect, plus thousands of other such documents that are subject to little scrutiny or democratic accountability.

Congress passes a few dozen laws every year, while federal agencies issue several thousand “legislative rules” and regulations. The Administrative Procedure Act (APA) of 1946 established the process of public notice for proposed rulemaking, and provided the opportunity for public input and comment before a final rule is published in the Federal Register, and a 30-day period before it 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 often declines to enforce laws passed by Congress. Most prominent recently 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.

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. No one knows how much the regulatory state “weighs,” or even the number of agencies at the center of our bureaucratic “big bang.” But for We, the Regulated, ignorance of the law is no excuse.

The upshot of 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 a preliminary effort at outlining the scope of this phenomenon. It concludes with steps for Congress to address dark matter and to halt the over-delegation of legislative power that has permitted it.