Government ‘Dark’ Regulations Mapped Out

Read the report in .pdf form here.

One of the first Executive Orders signed by President Trump was on Regulations. Read that text here from the White House.

 2015

Mapping Washington’s Lawlessness: CEI Releases Updated Inventory of “Regulatory Dark Matter”

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 115^th Congress and beyond needs to incorporate language to address dark matter, not just rules

*** A weekday never passes without new regulations being issued or proposed. Yet beyond those rules, Congress lacks a clear grasp of the amount and cost of the thousands of executive branch and federal agency proclamations and issuances, including guidance documents, memoranda, bulletins, circulars, and letters that carry practical (if not always technically legally) binding regulatory effect. There are hundreds of “significant” agency guidance documents now in effect, plus many thousands of other such documents that are subject to little scrutiny or democratic accountability.

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, generally with judicial deference to what agencies contend, an issue of increasing concern to Congress. The result is that no one knows how much the regulatory state “weighs,” or even the number of agencies. The Administrative Procedure Act (APA) of 1946 established the process of public notice for proposed rulemakings, providing the opportunity for public input and comment before a final rule is published in the Federal Register, and a 30-day period before the rule 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.”