A Banger Trump Executive Order Abolishing Regulatory Dark Matter
“[A] loathsome night-spawned flood of organic corruption more devastatingly hideous than the blackest conjurations of mortal madness and morbidity. Seething, stewing, surging, bubbling like serpents’ slime it rolled up and out of that yawning hole, spreading like a septic contagion.”
—H.P. Lovecraft, “The Lurking Fear”
Returning a Biden favor, Donald Trump has eliminated dozens of his predecessor’s directives while adding dozens of his own aimed at draining the “bubbling,” “yawning” swamp.
On the deregulatory front, Trump’s highly anticipated—but not yet seen—requirement that agencies eliminate 10 directives for every significant regulatory action added looms as a landmark move.
Among the most high-profile moves, Trumps eradication of Biden’s so-called diversity, equity and inclusion (DEI) policies and offices has been as thorough as it can be with executive action alone. This effort encompasses everything from the purging of DEI officials and positions to eliminating DEI requirements in federal contracting. A similar initiative is likely looming for colleges and universities receiving federal funding.
Rest assured, however, that DEI is in no way being repudiated by invested institutions. The left-leaning media, entrenched bureaucracy, universities, and corporations remain steadfast in their adherence to wokeness. Examples range from any random hour on NPR; the ATF (Alcohol, Tobacco and Firearms) rebranding DEI endeavors to fly under the radar; and firms like CitiCorp and Costco reaffirming their commitments.
Such institutions can be expected to percolate DEI policies through non-profits and NGOs, waiting out Trump and Vance until a leadership change occurs some even-numbered span of years from now.
The Legal Framework Still In Play
If such a resurgence is to be avoided, one must recognize that much of the exploitable legal framework for rapidly restoring DEI programs remains intact, and act accordingly. After 100 years of progressivism and attendant legislation and bureaucracy, much of that worldview can be implemented without new laws or regulations, relying instead on sub-regulatory mechanisms like guidance documents, memoranda, and the allocation of subsidies, grants, and loans. The latter, including the contracting and procurement apparatus, is what we saw Trump targeting this week with a temporary pause to assure conformity with the administration’s priorities.
Trump’s latest executive order freezing grants and loans tied to DEI priorities is a critical first step. These multi-hundred-billion-dollar mechanisms enable regulatory laundering through dark matter — guidance documents, policy statements, interpretations and more issued by unelected officials. Trump’s merely temporary pause, however, will prove insufficient; more permanent overhauls are essential, including the wholesale dismantling of departments and agencies dispensing such largesse.
Progressives’ Ever-Changing Names and Policies
The seemingly innocuous phrase, “under whatever name they appear” employed in Trump’s revocation of DEI programs is increasingly critical when dealing with progressives, who excel at repackaging malign policies, and then naming an agency or program after them. If DEI cannot be explicitly named, it will be rebranded as ESG (Environmental, Social, and Governance) or some follow-up phrase. If a “Diversity Officer” cannot exist, they will simply become an “Officer.”
Executive orders alone cannot adequately dismantle the sprawling machinery of Biden’s whole-of-government coercive social engineering. Given the profound departure from the principles of limited government these have entailed, legislative heft is required to purge the federal government of constitutionally alien progressive policies and prevent their resurgence. DEI is just the tip of the costberg.
Beyond DEI: A Broader Progressive Agenda
Biden’s “whole-of-government” strategy fused DEI, ESG, environmental justice, aggressive climate goals and more into the missions of nearly every federal agency. (Climate goals under Biden, for example, involved not just the Environmental Protection Agency but the Departments of Energy and Defense; and even the ostensibly independent financial agencies were tasked with advancing aggressive decarbonization goals.) This across the board activism extended to competition policy interference, price controls via the Departmentsof Agriculture and Transportation, and even the so-called “Care Economy”—much driven by sub-regulatory guidance.
Biden successfully fused these politicized pursuits of coercive utopian ambiguities and unattainables with the core missions of many regulatory agencies boasting powerful funding and regulatory authorities. While perhaps dormant under Trump, much of this apparatus can be reanimated by future administrations—unless Trump cuts the water off.
Essential Reforms: Planks to Dismantle Regulatory Dark Matter
To be sure, traditional legislative options for regulatory reform are vital. These include eliminating Biden rules with the Congressional Review Act’s disapproval process; regulatory budgeting; re-establishing an annual aggregate-cost estimate; bringing independent agencies under formal regulatory review processes; standing a regulatory reduction commission to cut rules annually; sunsetting; report cards; and moves like the “Small Business Regulatory Reduction Act” from Rep. Beth Van Duyne (R-Texas). The administration and Congress should work together on all these and more.
However, at this point in U.S. history, regulatory dark matter issued by unelected administrators and greased by subsidies, grants, loans and contracting stipulations can advance much of the progressives’ agenda without new legislation or even new rules.
So, in addition to a likely one-in, ten-out executive order on rules, the Trump administration might well address regulatory dark matter in an updated executive order, and more importantly, secure congressional backing to prevent DEI, ESG and all the rest of the progressive control apparatus from securing a fresh foothold later on.
In Trump’s first term, his E.O. 13,891 on “Promoting the Rule of Law Through Improved Agency Guidance Documents” created portals for guidance disclosure and cemented some elements of Office of Management and Budget (OMB) oversight such as recommendations for notice-and-comment for significant guidance. Before that, there existed official but not-fully-enforced procedures for guidance document oversight from the George W. Bush era. Trump should reissue and update—and Congress codify—his E.O. 13,891 as well as his E.O. 13,892 on “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.”
Initial congressional support here would include passing the Guidance Out of Darkness Act, or “GOOD Act,” which, like Trump’s portal order, would require agencies to publish all of their guidance in easily accessible form online. Biden not only revoked those sensible Trump portals (we stubbornly maintain an informal version here); he also directed agencies to revoke the self-governing rules they wrote to protect the public from abuses of guidance documents that E.O. 13,891 also required.
To preempt a guidance-driven revival of whole-of-government progressivism, Trump (and Congress) can raise the barriers to exploitation of rule-by-guidance with the “Planks” that follow. Parallel reforms of ordinary notice-and-comment regulation investigated at length elsewhere are here simply assumed, as are synergies with the anticipated one-in, ten-out endeavors and integration of strategies with the efforts of Elon Musk’s Department of Government Efficiency (DOGE).
Plank 1: A U.S. Code or CFR (Code of Federal Regulations) for Regulatory Dark Matter
Rather than mere scattered agency portals as specified in E.O. 13,891, all guidance should be disclosed in a single centralized location with detailed summary statistics for all agencies. Guidance could also be classified genus-and-species style and enumerated like laws, executive orders and regulations. Where rules have Regulation Identifier Numbers or RINs, guidance can have GINs. That would enable creation of a compendium of all validly issued guidance that, in turn, would no longer merit the title “dark matter.”
Plank 2: A Unified Agenda Incorporating Subtraction as Well as Addition
Guidance could be integrated into the twice-yearly Regulatory Plan and Unified Agenda for Federal Regulatory and Deregulatory Actions along with rules. In addition, guidance (and rules) should be designated as either “Regulatory” or “Deregulatory.” Lawmakers should ensure the designation does not disappear as it did after the first Trump term.
Plank 3: Operationalize the Congressional Review Act for Regulatory Dark Matter
Trump and Congress should reaffirm—as then-acting Office of Management and Budget Director Russell Vought did in an important April 2019 memorandum to executive agency heads on “Compliance with the Congressional Review Act”—that agency guidance is subject to the Congressional Review Act, and therefore must be submitted to the Government Accountability Office (GAO) and to both houses of Congress. In partial fulfilment of this formal presentment to Congress and GAO, the Congressional Review Act reporting template hosted on the GAO website (“Submission of Federal Rules under the Congressional Review Act”) at long last has been modified to clearly designate “Guidance” and “Draft Guidance”—not merely certain limited rule types. Now the task is to ensure that it gets used.
Plank 4: Disregard Administrative Noise
Some regulatory reform laws already on the books are not enforced. The requirement for an aggregate regulatory cost estimate is one, along with the failure at times for rules—and almost all guidance—to be submitted to Congress and GAO. Trump should affirm that improperly issued guidance (and rules) will be regarded as void. As it stands, some rulemakings and guidance are likely invalid. They could be ditched most easily if only members of Congress would admit that unsubmitted directives are merely administrative noise. Congress should affirm that noncompliance with CRA submission or proper procedures should render such directives unenforceable.
Plank 5: Require Notice and Comment and “Significant Guidance” Designations
To the extent guidance is used, it should undergo public notice-and-comment procedures, akin to formal rulemaking. Emphasizing such procedures for guidance would codify elements of Trump’s E.O. 12,891 as well as prior art of George W. Bush. Ronald Reagan’s E.O. 12,291 on “Regulatory Review” allowed the OMB Director to deem a rule “major,” trigger more intense review. Trump should revive that provision in his own upcoming orders (it is absent from the currently governing Clinton-era E.O. 12,866), and encourage OMB to similarly and freely deem guidance “significant” and trigger enhanced OMB scrutiny of it.
Plank 6: A REINS Act for Guidance
Speaking of scrutiny, the Regulations from the Executive In Need of Scrutiny (REINS) Act would require explicit congressional approval of major rules; the latest version of REINS, from Sen. Rand Paul (R-Kentucky) and Rep. Kat Cammack (R-Florida), would also apply to guidance documents. To forestall a progressive resurgence at some future date, Trump could go beyond the Congressional Review Act’s neglected submission process for guidance and disallow guidance that does not secure outright congressional approval. For both rules and guidance, non-major but controversial rules should also require explicit approval.
Plank 7: Upon Reflection, Ban Guidance Altogether
Coming full circle to the banning of DEI across government, the administration and Congress should ban altogether the issuance of certain federal agency guidance, especially in frontier and tech sectors where the risk of abuse is high. These sectors are particularly vulnerable to Biden-style engineering on climate, equity, competition policy and whatever the next “great reset” turns out to be, and so need bold inoculation. Most matters are not public policy issues, and political failures outweigh market failures, and the administrative state should have no role; and for that matter, nor should Congress.
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