Fifteen Republican state attorneys general led by West Virginia AG Patrick Morrisey sent a letter to House and Senate leadership on 11th July that calls on Congress to eliminate “burdensome and illegal regulations by strengthening the Administrative Procedure Act (APA).” The letter received very little attention in the press when it was sent, but on 19th July there was an article in the West Virginia Record and another by Michael Bastasch in the Daily Caller.
The first paragraph summarizes the AG’s objections to federal regulatory overreach:
“As the chief legal officers of our States, we are concerned about the mounting costs that unlawful federal regulations—advanced in violation of the Administrative Procedure Act—impose on citizens, businesses, and state and local governments. With seemingly increasing frequency, federal agencies are: (1) issuing guidance documents as a way to circumvent the notice and comment process; (2) regulating without statutory authority; (3) failing to consider regulatory costs; and (4) failing to fully consider the effect of their regulations on States and state law.”
The letter continues with a summary of their request:
“We are encouraged that the U. S. House of Representatives and the U. S. Senate recently have considered legislation directed toward resolving some of these concerns. We write today to urge Congress to go further and take concrete action to ensure that federal agencies are in fact providing opportunity for notice and comment for all binding agency requirements, acting within their delegated authority, and always rigorously assessing the costs of their regulations.”
The letter notes that guidance documents, interpretive rules, and policy statements are not subject to the APA because in theory they are not binding. But in practice, many of these quasi-rules are binding. Wayne Crews, my CEI colleague, wrote a significant study, Mapping Washington’s Lawlessness, published last December that catalogues the extent of these binding non-rules. And here is a recent interview with Wayne on what he has named “regulatory dark matter.”