In addition to non-congressional lawmaking, the executive branch often declines to enforce laws passed by Congress. Most prominent recently was the July 2013 Treasury Department’s unilateral delay, first by blog post, then by IRS guidance, of the Affordable Care Act’s (ACA) employer mandate and its accompanying tax penalty for non-compliance. Then came the November 2013 declaration—first by the president during a news conference and subsequently in Department of Health and Human Services guidance material—that insurers could continue to sell non-ACA compliant health policies.
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. No one knows how much the regulatory state “weighs,” or even the number of agencies at the center of our bureaucratic “big bang.” But for We, the Regulated, ignorance of the law is no excuse.
The upshot of regulatory dark matter is that, without Congress actually passing a law or an APA-compliant legislative rule or regulation being issued, the federal government increasingly injects itself into our states, our communities, and our personal lives. This report is a preliminary effort at outlining the scope of this phenomenon. It concludes with steps for Congress to address dark matter and to halt the over-delegation of legislative power that has permitted it.