Today, the Competitive Enterprise (CEI) released the 2017 update to its comprehensive report Mapping Washington’s Lawlessness: An Inventory of “Regulatory Dark Matter.” This analysis covers how, in addition to Congress’s own laws and the many thousands of rules issued by unelected regulators, regulatory dark matter exists in the form of thousands of additional issuances from executive and independent agencies. This dark matter goes around Congress, the Administrative Procedure Act’s (APA) public notice and comment requirements, and the American people themselves.
Examples include presidential and agency memoranda, guidance documents, bulletins, and public notices. These directives interject the federal government into our businesses, our communities, and our personal lives on matters such as healthcare, retirement, labor policy, education policy, and more.
President Trump is already taking certain steps to “deconstruct” the administrative state’s excesses, starting with a temporary regulatory freeze that includes agency guidance documents and rules. His executive orders concerning deregulation are helping, but a regulatory hangover from the Obama administration still lingers.
CEI’s Vice President for Policy Clyde Wayne Crews, Jr., the author of the report, calls on Congress to remedy the problem:
“Congress needs to take back its authority over federal agencies. The problem with regulatory dark matter is that it allows the executive branch of our government to rule sectors of our economy through mere announcements, rather than actual lawmaking or even proper rulemaking. This allows the government to interfere in many aspects of Americans’ lives without our input or that of Congress.
“We’ve been pleased to see the president’s aggressive out-of-the-gate actions to free up the economy, but agencies under President Trump could still create new dark matter behind the scenes. That is why Congress must tackle regulatory reform legislation to ensure an end to this problem.”
Some quick takeaways on regulatory dark matter:
- Regulatory dark matter has accompanied the rollout of programs ranging from Obamacare to Dodd Frank to drone regulations from the Federal Aviation Administration.
- Recent major Labor Department mandates like the franchising and independent contracting rules were dark matter, not formal regulations as they should have been.
- No one really knows for certain how many federal regulatory agencies there are:
- The Unified Agenda lists 61 agencies
- The Administrative Conference of the United States lists 115
- The Federal Register office 440 agencies
- The Obama administration issued 3853 rules in 2016, while Congress passed and the president signed 214 bills into law – a ratio of 18 rules for every enacted law.
- The report’s conclusion lists specific ways the Trump administration, either alone or with Congress, can tackle regulatory dark matter so that agencies are not incentivized to use it.
- APA “notice and comment” provisions should apply to any proposed rule
- Each piece of regulatory reform legislation passed in the 115th Congress and beyond needs to incorporate language to address dark matter, not just rules
>> Read Wayne Crews’s report: Mapping Washington’s Lawlessness: An Inventory of “Regulatory Dark Matter”
>> For more information on this topic, check out Wayne Crews’s annual report surveying trends in federal regulations and their burdens on the U.S. economy, Ten Thousand Commandments.