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“Dark Matter” in the Federal Universe

11 Dec 2015

I regret I cannot compete with my colleague Mark Smith for sheer humor.  In fact, talking about Federal regulations can be really boring.  But what they lack in pizzaz, they make up for in importance–unfortunately in a negative way.

I read a very illuminating study by Clyde Crews, entitled “Mapping Washington’s Lawlessness: A Preliminary Inventory of ‘Regulatory Dark Matter,’” published by the Competitive Enterprise Institute (see Issue Analysis 2015, no. 6).  You can read the entire study at https://cei.org/sites/default/files/Wayne%20Crews%20-%20Mapping%20Washington%27s%20Lawlessness.pdf.   One of my Bereans colleagues suggested my previous blog on mens rea didn’t get the heart of the problem, that being too many regulations.  Well, this article satisfies that desire—but also makes me depressed because of just how bad things really are in DC alone.  Crews takes a pretty comprehensive inventory of the kinds of government intervention all of us face every day, most of the time not even realizing how often we may violate some type of regulation.  The inventory includes any and all statements or writings issued by a Federal governmental agency and that have some force of law or threat of prosecution.  These include many that are never even published in the Federal Register, in fact, many thousands.  The list includes formal rules, memos, guidance documents (of several different varieties), bulletins, circulars, announcements, executive orders, notices, denial of application, adjudication, advisory opinion, agreement/contract, analysis, certification, clarification, complaint, consent order, consent decree, just plain decree, order, delay of effective date, industry letter, concept paper, information sheet, manual, compliance policy guide, special controls document, early comment, economic analysis, evaluation, findings of fact, circular, management directive, report, risk assessment, significant guidance, study, waiver, withdrawal, work plan and many others, including, incredibly, blog sites.  There have been as many as over 500, 000 of these actions since 1995, most of which have never been published outside the agency and some of which are not published at all.

As if this isn’t bad enough, the study indicates that no one really knows how many Federal agencies there are.  Counts vary considerably from about 50 to over 250 or more.  And there exists no official count.  Moreover most agencies, even when required, do not publish their notices of rule-making for public comment or their actual rules in the Federal Register, though it appears that most are required.  Finally, Congress itself is partly to blame for delegating so much of its legislative authority to agencies.  Of course the courts have allowed, even encouraged that practice.

There is every incentive for agencies to hide their activity in the form of this “dark matter.”  It has been going on for a long time, but has accelerated recently.  Congress too has an incentive to allow such abuse of power, as it seldom wants to delve into the details of agency actions and didn’t appear to want to be bothered in the first place when the particular agency was established.  As I have written before the Affordable Care Act was a perfect example.  The law, though 2,500 pages long, said little of specific substance but was written in vague terms with the details of implementation left to various agencies.  As a result we now have at least 17,000 pages of regulations, and that’s only what is formal and therefore easy to find.

There is no accurate figure (obviously) telling us how much all this is costing, or the perceived benefits.  How could there be, with so much hidden and difficult to obtain or calculate.  Even many major rules of over $100 billion in estimated cost, which require a substantial legal process, do not even come to the attention of Congress or the public, Crews shows.

In the meantime, the “rule making machine” continues to churn.  Crews suggests some important reforms, for example, to the Administrative Procedure Act, as well as better numbers and a more open process.  I am in agreement with what he does propose.  But I would go further.  Congress ought to place conditions on every agency-creating statute that would require reporting as well as public rule-making processes that are open, on penalty of an automatic reduction in either agency salaries or overall agency budget, or both.  But even more, Congress should stop passing laws foe every issue and alleged “crisis” that arises.  But of course, one may ask, how can we get Congress to restrain itself?  That will be difficult.  My preference would be some sort of Constitutional amendment that was aimed at reducing spending (with exceptions for war) or aimed at clarifying the limits of authority of Congress to pass laws.  The latter would involve an amendment that affected Article I, section 8 of the Constitution, the enumerated powers, as well as the “necessary and proper clause.”  Just a note:  I do not favor a simple balanced budget amendment, since it still would allow taxes to be raised to achieve the balance.  At any rate, I am sure there are other creative solutions.  But whatever we do it must be with the purpose of either bringing the administrative process under tight control or minimizing unnecessary laws that lead to the proliferation of more regulations.

There is more I could say on this, but I do recommend reading the study.