Washington’s ‘Dark Matter’ Regulations

In a recent Gallup poll, Americans named the government as the top problem facing our nation for the second year in a row — government beat out the economy, immigration, unemployment, and even terrorism. The public is frustrated with everyone from President Obama to members of Congress to politicians in general.

This isn't surprising, considering that 2015 was a banner year for government interference in Americans' lives without their assent; the Obama administration issued 39 regulations for every law approved by Congress. And that ratio wasn't a fluke. The average ratio of regulations to laws under George W. Bush was 17:1, less than half of Obama's 35:1 record. Annually, federal regulations now cost the economy about $1.9 trillion.

The president hasn't been shy about his willingness to use his "pen and phone" when Congress won't pass the laws he wants. But formal regulations and executive orders are just part of his strategy. In addition, as I detail in a new report for the Competitive Enterprise Institute, his administration has often worked through what I call "dark matter": proclamations in the form of guidance documents, memoranda, bulletins, manuals, circulars, and even blog posts.

Under the Administrative Procedure Act, most federal regulatory agencies must follow guidelines for proposing and establishing regulations. This includes public notice of a proposed rulemaking and a period for the public to submit comments. The APA also created a process for federal courts to review these agencies' actions and decisions.

But when the executive branch uses dark matter, federal agencies circumvent Congress, the American people, the courts, and essentially all oversight. Such proclamations are not supposed to be legally binding, but 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.

According to White House data, there have been 222 executive orders since 2008, but 472 executive memoranda ranging from the mundane to the weighty. Other dark-matter items, including guidance documents and other notices from the hundreds of federal agencies, are much more slippery. No one even knows how many federal regulatory agencies there are, who works for them, or what they cost American taxpayers. Agencies' public presentations of guidance and their effects are all over the place.

Agencies have voluntarily acknowledged at least 580 "significant" guidance memos — those with impacts of at least $100 million annually. Perhaps the most shocking volume of dark matter comes in the form of "public notices" that have appeared in the Federal Register: a whopping 524,251 since 1994, dwarfing the 777 executive orders published during that time. Most public notices may be trivial, but policymakers really don't know what's all in there. Not all guidance documents or other dark matter appear in the Federal Register.

Congress needs to get a handle on the extent of regulatory dark matter and what it costs us. At the root of the problem of regulatory overreach is Congress' dereliction of its constitutional legislative power. To address this, Congress should require a vote on all costly and controversial agency rules — including dark matter — before they become binding on you and me.

At the very least, Congress, and future presidents, need to assert that all decrees by federal agencies matter, not just those acknowledged and published as real "rules." Dark matter needs to receive at least the same administrative scrutiny as ordinary rules — which themselves could use greater oversight.

The Constitution isn't perfect, but it's better than a pen and phone.

Originally posted at Real Clear Policy