Despite the fact that the Constitution and Administrative Procedure Act prohibit the practice, federal agencies often engage in the commonplace tactic of issuing informal interpretations, factsheets, and other forms of “guidance,” to force compliance with a slew of “policy positions” that are not supposed to be legally binding. The agencies, in other words, use purportedly binding guidance to make law. This practice usurps the power of Congress and evades the legal requirements of formal APA rulemaking.
In issuing his Executive Orders on “Transparency and Fairness” and “Bringing Guidance out of the Darkness,” President Trump is doing something about these abuses and standing up for the constitutional rights of all citizens in the process.
While “reining in the Administrative State” has been a cornerstone of President Trump’s agenda, much work remains to done, with agencies continuing to rely upon guidance to circumvent the law. Earlier this year, for example, the United States Department of Agriculture (“USDA”) attempted to replace a properly-adopted regulation for animal identification with an entirely new and expensive approach (with an estimated cost in the billions), all of which was done pursuant to a two-page guidance document inauspiciously referred to as a “Factsheet.”
USDA cannot enforce animal identification requirements without going through formal rulemaking. The department in fact followed the appropriate process throughout 2011 and 2012, and in 2013 issued the “Traceability for Livestock Moving Interstate” regulation (78 Fed. Reg. 2040). That rule approved the use of a variety of livestock identification techniques, including brands, tattoos, eartags, group identification numbers, and backtags. That 2013 rule prohibits States and Tribes from requiring livestock producers to use what is known in the industry as “radio frequency identification” or “RFID.” In 2019, however, USDA reversed course and issued a Factsheet entitled “Advancing Animal Disease Traceability: A Plan to Achieve Electronic Identification in Cattle and Bison.” That so-called Factsheet mandates that producers who sell across state lines tag their livestock with RFID eartags.
Under the 2013 rule, producers can sell their livestock interstate so long as they use an approved form of identification—techniques that have worked well for over 100 years. Under the new RFID-only guidance, producers will be prohibited from selling their livestock interstate unless they implement an entirely new and costly form of identification. USDA has thus replaced a rule that prohibits an RFID-only approach with “guidance” that purports to mandate it.
USDA’s approach is unlawful. Fortunately, the cattle industry is fighting back. The New Civil Liberties Alliance (“NCLA”) has been retained to legally challenge USDA’s new guidance, filing a Complaint in federal court in Wyoming last Friday.
NCLA’s lawsuit against USDA is important beyond cattle producers. Which particular industry is damaged by “guidance” is irrelevant, as tactics designed to circumvent APA requirements have been used to great effect by many executive agencies. While livestock producers are today’s victims of unfair and nontransparent agency action, everyone else is at risk tomorrow.
Sadly, agency overreach did not end with the last administration (although the situation has substantially improved). USDA’s actions underscore why President Trump’s Executive Orders are both timely and critically important for ensuring that agencies operate solely and securely within the confines of our constitutional framework.
These Executive Orders show that opponents of guidance have a powerful ally in President Trump. We commend him on his response to the long history of agencies abusing “guidance” to expand their authority by imposing ever-increasing regulations on the unwitting public.