DEEP, DARK, AND UNACCOUNTABLE: Agencies Use Regulatory ‘Dark Matter’ To Avoid Trump Admin Reforms

‘It’s uncertain how many federal regulatory agencies exist.‘

Ethan Barton writes: Government agencies use “regulatory dark matter” to insert themselves into everyday life without congressional or public approval, a conservative nonprofit watchdog group reported Tuesday.

“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 rule-making.”

Federal regulatory orders include presidential and agency memoranda, guidance documents, bulletins and public notices that don’t require prior congressional consent, and empower the government to interfere in business and personal lives, according to the Competitive Enterprise Institute report.

 “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.”

“Congress needs to take back its authority over federal agencies,” CEI Vice President Clyde Wayne Crews Jr. said. “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 rule-making.”

Crews praised President Donald Trump’s efforts to curb government regulations, but said agencies “can still create dark matter behind the scenes,” and that additional congressional action is needed to curb the problem.

Recent examples of federal regulatory dark matter include Obamacare mandate waivers that extended employer mandate deadlines, Department of Justice guidance on transgender students, and the National Highway Traffic Safety Administration’s driverless car guidance.

“Congress lacks a clear grasp of the amount and cost of the thousands of executive branch” dark matter regulations, the CEI report said … (read more)

Source: The Daily Caller

What is Regulatory Dark Matter?

How do regulations get made? Agencies have to follow specific procedures, first outlined in the 1946 Administrative Procedure Act. The trouble is that many agencies simply ignore the law. Wayne Crews documents several cases of such procedural abuse in his new paper, “Mapping Washington’s Lawlessness 2016: A Preliminary Inventory of ‘Regulatory Dark Matter.’”

The rulemaking process has been updated and amended over time, and it can get technical. But the basic principles are pretty simple. For a detailed look at the process, see Susan Dudley and Jerry Brito’s excellent primer. Wayne’s point is that more and more often, agencies are ignoring proper procedure. Perhaps folks at the EPA, HHS, and other agencies should read Dudley and Brito.

The first principle is that only Congress can legislate. Agencies can’t just unilaterally issue regulations; Congress has to pass legislation directing them to issue rules. Agencies do have some discretion, but their regulations do have to have statutory authority. More and more, agencies are flouting Congress and acting on their own. In 2014, Congress passed 224 laws—while agencies issued 3,554 regulations. Recent examples of non-congressional legislating include net neutrality, carbon emissions, and subsidies to health insurance exchanges—which led to the King v. Burwell Supreme Court case.

Another principle is public participation and transparency. Before a new regulation can take effect, an agency has to publish a proposed version of the rule in the daily Federal Register. Once it’s published, that opens a comment period where anyone, from the general public to policy experts, can submit comments about the rule. Comment periods vary, but typically last from 30 to 90 days. Agencies are required to respond and take into account the public’s comments before the final version of the regulation takes effect. Read the rest of this entry »