Nearly 20 years ago, the D.C. Circuit Court of Appeals invalidated “guidance” wielded as law by the EPA saying, “The phenomenon we see in this case is familiar. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.”
On Oct. 9, the White House issued two executive orders designed to put an end to such insidious, secretive, and lawless lawmaking by unaccountable bureaucrats recognized by the court as invalid two decades ago.
The two orders seek to bring guidance out of the darkness and promote transparency and fairness by ensuring that Americans are governed by duly enacted statutes or lawfully promulgated regulations published online and further that Americans will not be subject to enforcement or adjudications absent prior public notice of the agency’s jurisdiction and the legal standards applicable to their conduct.
The two complementary orders shine a searchlight into the swamp, hold agencies to detailed standards of transparency, fairness, and due process, and should serve to dredge away much of the brown algae of regulatory dark matter.
Thousands of such guidances-masquerading-as-law have entangled tens of thousands of defenseless Americans in law enforcement schemes never lawfully promulgated. Among the abuses:
- prolonged proceedings by agencies that do not deign to tell Americans what they are charged with,
- biased adjudications before an administrative judge who reports to their prosecutor,
- agency adjudications that strip away Americans’ constitutional rights to a fair trial,
- license and permit revocations that operate as occupational death penalties,
- draconian business-killing fines,
- property seizures, and
Faced with such costly, life-altering, career-, business- and reputation-destroying process this punishing, the majority of Americans inevitably settle, meaning there is never any judicial review of these prosecutions so cruelly stacked against them. Worse, agencies cite settlements as precedents for expanding their costly mischief in secrecy and darkness.
Off the Books Government
Powerful government agencies have regulated Americans through the velvet glove of “guidance” for many decades. Its disingenuous premise: The government is only trying to help you by clarifying what you must do in order to avoid punishment. No wonder President Ronald Reagan said the nine most terrifying words in the English language are “I’m from the government and I’m here to help.”
Guidance is a cheap end-run around real lawmaking because it evades notice, comment, bicameralism and presentment. Further, it evades judicial review because courts don’t consider guidance to be “final” agency action. The D.C. Circuit astutely noted this moral hazard posed by guidance: “The agency may think there is another advantage—immunizing its lawmaking from judicial review.” By issuing such guidance, agencies write themselves blank checks that bring Americans to their knees, forcing capitulation out of fear of prosecution. Yet these rules were never enacted by Congress nor published in the Federal Register subject to notice and comment. Accordingly, they have no lawful validity at all.
The first Executive Order requires all guidance to be put online in searchable form within 120 days. Americans will know what agency guidance proposes to govern their conduct. Posted guidance must be signed by accountable officials which should extinguish the appalling, widely accepted practice of nameless career bureaucrats making rules on their own. A politically accountable appointee must own the regulation.
That selection process should winnow and consign much guidance to a well-deserved death. Such posted guidance should be recognized as a “final order” of the agency, permitting a person to challenge the rule in court. Agencies must provide a mechanism for the public to petition to revoke the guidance. Such public participation in the shaping or retention of an agency rule restores a measure of democratic accountability to a process that spiraled away from such control long ago.
The orders further require agencies to articulate the legal authority for their action before they may institute any proceedings with adverse legal consequences. American individuals and businesses must also be told what their charges are. Further, they must be given an opportunity to respond before the agency can proceed against them. And agencies may not unfairly surprise citizens with enforcement actions that do not provide fair warning and reasonable certainty of the standard that exposes them to potential liability for past, present or future conduct.
These orders are revolutionary, in the best sense of the term. Bernard Bailyn and Philip Hamburger have shown that we fought a revolution to get out from under such ministerial abuses of power by unelected and unaccountable officials.
The Founders knew how fragile these constructs of their political imaginations were. James Madison famously asked in Federalist 48, “Will it be sufficient to trust to these parchment barriers against the encroaching spirit of power?” He promptly answered no—that encroachments upon constitutional limits will inevitably lead to a concentration of the powers of government in the same hands—exactly what confronts Americans haled before agencies in administrative enforcement actions.
The agency legislates through guidance, prosecutes Americans on this false “legislation” then tries them before an in-house judge that reports to the prosecutor who—no surprise—finds in favor of the government in the overwhelming majority of cases that do not settle. With such odds, most Americans capitulate in settlement meaning that vast, lawless administrative abuses of power never see the light of day.
The White House’s executive orders bring light and transparency to this enduring problem of human political conduct and go a long way toward restoring constitutional limitations on government power. They should be cheered by Americans across political divides. No serious argument can be articulated against transparency and restoring constitutional liberties of fair notice, due process and executive accountability.
Originally published in the Bloomberg Law on October 11, 2019