Washington, D.C. – Today, the White House issued two Executive Orders recognizing and addressing the problem of abusive regulatory guidance. “Bringing Guidance out of the Darkness” and “Transparency and Fairness” will force transparency and accountability upon federal agencies who too often regulate through shortcut “guidance” in order to circumvent the notice-and-comment rulemaking process that the Administrative Procedure Act (APA) mandates for binding regulations.
President Trump’s Executive Orders will restrict agencies’ use of guidance in several important ways:
- Agencies have 120 days to inventory their existing guidance and decide what to defend keeping.
- Every guidance with penalties must identify the particular statute or regulation that authorizes it
- All enforcement standards have to be articulated in advance, not invented on the fly
- Administrative inspection authority has to be spelled out in advance, so searches adhere to law
- The EOs help solve the problem of guidance evading judicial review when it’s not final agency action
- Before any adverse legal consequences may start, an agency has to notify targets of the charges against them, give them a chance to respond, and then must reply to that response in writing
- Agencies must put processes in place that permit people to petition them to revoke certain guidances
Since July of 2018, the New Civil Liberties Alliance (NCLA) has filed 21 anti-guidance petitions requesting that federal agencies stop promulgating and enforcing guidance that purports to legally bind individual Americans and small businesses. NCLA believes this attempted use of binding agency guidance documents is unconstitutional. NCLA represents private citizens and organizations in ongoing public-interest litigation who have been directly impacted by rogue agencies abusing guidance.
For example, NCLA client Dr. Mukund Vengalattore, a former tenure-track physics professor at Cornell, was subjected to a Title IX disciplinary proceeding utterly lacking in due process as a result of the 2011 “Dear Colleague Letter” forced upon colleges and universities by the Department of Education. The Letter eliminated due process protections for college students and professors accused of misconduct. This and related documents decided, with no basis in existing law, that colleges were no longer allowed to provide accused students with basic constitutional protections, like the chance to confront the evidence against them. As Education Secretary Betsy DeVos recognized while later rescinding these guidance documents, scores of students and professors were denied “due process” and “fundamental fairness” as a result of this informal lawmaking.
Today’s executive orders from the White House address many of the same concerns NCLA’s anti-guidance petitions tackled. For that reason, NCLA will work through the regulatory implementation process to ensure that these executive orders are not watered down when adopted by federal agencies and departments across the government.
NCLA released the following statements:
“President Trump’s twin executive orders limiting regulation through guidance will protect Americans from an unconstitutional mode of governance that the Supreme Court has shamefully permitted.”
– Philip Hamburger, NCLA President
“Even more than the two-out-one-in executive order on issuing new regulations, today’s executive orders will dramatically alter the way agencies regulate Americans’ lives. By taking away one of the Administrative State’s favorite shortcuts, the anti-guidance executive orders will go a long way toward preventing unlawful guidance from binding anyone’s conduct.” – Mark Chenoweth, NCLA Executive Director and General Counsel
NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.