Today, the Competitive Enterprise released the first comprehensive report on how the executive branch goes around Congress, the American people, and the Administrative Procedure Act (APA) to interject itself into our states, our communities, and our personal lives on matters such as health care, retirement, labor policy, education policy, the Internet and more.
CEI’s Vice President for Policy Clyde Wayne Crews, Jr., the author of the report, calls this phenomenon “regulatory dark matter,” and describes it as executive branch lawmaking by guidance documents, memoranda, bulletins, manuals, circulars, public notices and other agency proclamations.
“It’s bad enough that no one really knows how many federal regulatory agencies there are, and what they cost American taxpayers,” said Crews. “But the administration’s unaccountable approach of governing by guidance and proclamations makes Americans’ lives even harder by creating regulations that are difficult to understand, impossible to count, and hard to find, as some aren’t even written down.”
For example, Crews finds that 524,251 “public notices” have appeared in the Federal Register since 1994, dwarfing the 777 executive orders published during that same time. It is unknown which of these public notices are significant or trivial.
“Dark matter is dangerous for democratic accountability because such proclamations are not supposed to be legally binding,” said Crews. “However, if you’re a small business person awaiting a permit or approval, they’re hard to ignore—assuming you can find where they’re published. Many small business owners agree that regulations are one of the biggest problems they face today.”
Crews argues that Congress needs to address this problem by taking back its constitutional legislative power it has abdicated over the years.
“Congress should require a vote, not just on all costly and controversial agency rules, but also regulatory dark matter, before such orders become binding on you and me,” said Crews. “At the very least, Congress, and future presidents, need to assert that all decrees by federal agencies matter, and dark matter needs to receive at least the same administrative scrutiny as ordinary rules—which themselves require far greater oversight.”
>> Read Wayne Crews’ report: Mapping Washington’s Lawlessness: A Preliminary Inventory of ‘Regulatory Dark Matter.
>> For more information on this topic, check out Wayne Crews’ annual report estimating the costs of federal regulation on the U.S. economy titled, Ten Thousand Commandments.