The Obama administration, already under fire for bypassing Congress, is also finding new ways to bypass the regulatory process through executive branch agencies, according to a new analysis by the Competitive Enterprise Institute.
The report, made public Tuesday, says federal regulators are imposing new restrictions on American business and individuals “through guidance documents, memoranda and even blog posts.”
This comes with little oversight from Congress or the public. Executive branch regulations do not require congressional approval, but do require a process of public comment, economic analysis and agency hearings.
Wayne Crews, the CEI vice president for policy and the author of the report, calls this “regulatory dark matter.”
“The Obama administration is imposing its regulatory agenda on the American economy by dodging legally-required checks and balances,” Crews said. “The administration has been deservedly criticized for unilateral executive actions, but other types of agency rulemaking go overlooked, and people have no chance to weigh in on new policies that impact them.”
Among the examples highlighted in the report are:
- A Labor Department blog post that acted as an “Administrative Interpretation” to inform the public that most independent contractors are henceforth employees of the government.
- A Department of Housing and Urban Development guidance document determined that landlords and home sellers turning down people with criminal records are in violation of the Fair Housing Act.
- The Treasury Department delayed the Obamacare employer mandate and penalties without providing an economic analysis or allowing public comment.
- The Environmental Protection Agency Clean Water Act interpretive guidance on “Waters of the United States,” which critics said would regulate holes in the ground on private property.
The report calls for Congress to use the power of the purse to defund agency actions and programs not authorized by Congress; repeal or amend vaguely worded laws; require congressional approval before agency proclamations that have a big economic impact; apply Congressional Review Act “resolutions of disapproval” to regulatory dark matter; and require more intense regulatory review and reporting.