President Donald Trump on Wednesday afternoon signed executive orders that will change how federal agencies issue guidance documents, which they can use to set regulatory policy without going through the normal lengthy public comment and review process.
Agency guidance documents carry less weight than formal regulations, but also do not have to go through the public notice and comment procedure required under the Administrative Procedure Act and can be more difficult to challenge in court.
The federal government has in the past issued guidance to alter clean air and water regulations and the Obama administration used the method in 2011 to direct colleges on how to adjudicate accusations of sexual misconduct on campus.
But critics say the practice expands the power of administrative agencies, which use guidance documents to dodge the APA’s procedural protections and effectively bind people with rules on which they had little to no input. A report from House Republicans last year found federal agencies have issued more than 13,000 guidance documents since 2008.
“This regulatory overreach gravely undermines our constitutional system of government,” Trump said. “Unelected, unaccountable bureaucrats must not be able to operate outside the democratic system of government… imposing their own private agenda on our citizens.”
Under the orders Trump signed Wednesday, agencies must accept public comment on major guidance documents they issue in the future and publish them on a searchable website. The orders also allow people and businesses to request opinion letters from agencies to help them comply with the government’s interpretation of a law.
In a statement Wednesday, Mark Chenoweth, the executive director and general counsel of the New Civil Liberties Alliance, said the 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,” Chenoweth said.
Amit Narang, a regulatory policy advocate at Public Citizen, defended guidance documents, saying they help agencies more nimbly respond to new challenges that call for federal regulation.
“Limiting guidance undermines one of the key tools federal agencies use to protect the public from health, safety and environmental risks,” Narang said in a statement. “Guidance does not create new duties or obligations, but it does clarify regulatory interpretations and signal enforcement interpretations; as a result, it not only advances public protections, it creates certainty and clarity for regulated businesses.”
Originally published in the Courthouse News Service