Administrative State |
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Regulatory dark matter is a term coined by policy analyst Clyde Wayne Crews Jr. to describe, in his words, "executive branch and federal agency proclamations and issuances such as memoranda, guidance documents, bulletins, circulars, announcements and the like with practical if not always technically legally binding regulatory effect."[1][2] Crews is critical of what he calls regulatory dark matter because he believes agencies sometimes use these proclamations and issuances to impose practical requirements, set policy- and decision-making priorities, and take other actions that exceed the intent of Congress or avoid federal rulemaking procedures.[3][4][5]
As of October 2017, Crews had published two reports on regulatory dark matter with the Competitive Enterprise Institute (CEI).[6][3] Other critics of the administrative state, including writers for The American Spectator, National Review, and the CEI, have also employed the term.[7][8][9]
The concept of regulatory dark matter was developed and named by Clyde Wayne Crews Jr., who as of October 2017 was vice president for policy and director of technology studies at the Competitive Enterprise Institute, a libertarian think tank.[2][10] According to Crews' first report on regulatory dark matter, published by the CEI in December 2015, the term is derived from a concept in physics known as dark matter:[3]
“ | Astrophysicists have concluded that ordinary visible matter—the Sun, the Moon, the planets, the Milky Way, the multitudes of galaxies beyond our own, and their trillions of component stars, planets, and gas clouds—make up only a tiny fraction of the universe. ... Instead, dark matter and dark energy make up most of the universe, rendering the bulk of existence beyond our ability to directly observe. Here on Earth, in the United States, there is also 'regulatory dark matter' that is hard to detect, much less measure.[11] | ” |
—Clyde Wayne Crews Jr., "Mapping Washington's Lawlessness 2016"[3] |
Crews applies the term to, in his words, "executive branch and federal agency proclamations and issuances such as memoranda, guidance documents, bulletins, circulars, announcements and the like with practical if not always technically legally binding regulatory effect."[1] He refers to these regulatory actions as dark matter because they are exempt from the requirements of the Administrative Procedure Act (APA), a federal law passed in 1946 establishing uniform procedures for federal agencies to propose and issue regulations, a process known as rulemaking.[3][12][13]
Crews is critical of what he calls regulatory dark matter because, according to his first report, agencies can use these proclamations and issuances to impose practical requirements, set policy- and decision-making priorities, and take other actions "without Congress actually passing a law or an APA-compliant legislative rule or regulation being issued."[3][4][5]
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