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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 »

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The Left’s Crusade Against Free Speech

censored-hand-over

Peter Berkowitz writes: In October 2009, the Obama White House launched a concerted attack against critical press coverage, one unparalleled since the days of the Nixon White House. In one respect, Barack Obama and Richard Nixon were in agreement: both perceived a distinctly liberal bias in the media. Nixon denounced the press for its leftism, Obama objected to the press’s deviation from it. So Obama and his senior staff singled out for condemnation Fox News, the lone television network that did not serve up the fawning coverage the president and his team had come to expect.

free-speech-censorship

In “The Silencing: How the Left is Killing Free Speech,” Kirsten Powers recounts that in the space of a few days, White House communications director Anita Dunn, her deputy Dan Pfeiffer, White House Senior Adviser David Axelrod, and White House Chief of Staff Rahm Emmanuel openly asserted that the administration properly excluded Fox reporters from press briefings because Fox was not a legitimate news organization. When asked for comment by NBC News, President Obama stood behind his team.

hammer-censored

Grousing about criticism is only human, and presidential displeasure with the press is nothing new. But wielding the presidential bully pulpit to decree what counts as legitimate news coverage represented an ominous turn in American politics.

“The smearing of opponents of the progressive party line as purveyors of hatred; the denigration of critics of left-liberal public policy as racists, sexists, and homophobes; and the ostracism of advocates of faith, tradition, and the virtues of America’s experiment in self-government as minions of sinister forces—these have become routine features of intellectual life at our leading universities.”

Separation of press and state is as essential to the American constitutional order as separation of church and state. In one respect, religious freedom depends on press freedom: a press that is answerable to, or in the pocket of, the government will be unwilling to report, or incapable of reporting accurately, when government exceeds its lawfully prescribed boundaries.

censord

What could the president and his advisers have been thinking in orchestrating an assault on Fox News? Where could our president, a graduate of Columbia University and Harvard Law School and a former lecturer at the University of Chicago Law School, silencinghave gotten the idea that it was government’s prerogative to determine who properly reports the news and to supervise the flow of opinion in the country?

[Order Kirsten Powers book The Silencing: How the Left is Killing Free Speech” from Amazon.com]

Sad to say, they could have been thinking they were faithfully implementing the ideas about the need to regulate speech that they had learned in college. The smearing of opponents of the progressive party line as purveyors of hatred; the denigration of critics of left-liberal public policy as racists, sexists, and homophobes; and the ostracism of advocates of faith, tradition, and the virtues of America’s experiment in self-government as minions of sinister forces—these have become routine features of intellectual life at our leading universities. The development of doctrines designed to curtail nonconforming speech was already well under way by the time Obama attended college in the early1980s and law school in the early 1990s. Read the rest of this entry »