“Stealth” or “underground” regulation: Congress needs to step in

For decades federal agencies have been exerting their will through informal guidance documents, memoranda, “Dear Colleague” letters, rules imposed in settlement agreements with regulated entities, and so forth, all tending to dodge the constraints that the Administrative Procedure Act (APA) and similar laws apply to formal creation of regulations through rulemaking. The result is to evade requirements of openness, accountability to the public and courts, and norms of consistency, preannouncement and rationality in agency policy. (See discussion of subregulatory guidance, “underground” and “stealth” regulation here, here, and here)

Wayne Crews of the Competitive Enterprise Institute has a new paper documenting the extent of the problem and proposing a variety of ways Congress could exercise tougher oversight.


  • Don’t forget the “Sue to Settle” suits where an allegedly aggrieved NGO sues on behalf of “the environment” or a supposedly endangered species, and the defendant agency files a settlement the same day, without any opportunity for the now to be regulated third parties to intervene,