President Trump continues to tighten the reigns of executive agencies, this time by issuing two Executive Orders designed to prevent agencies from improperly using guidance documents. Together, these orders reinforce agency adherence to the rule of law and due process and also provide meaningful restraint to regulatory overreach.
Under the Administrative Procedures Act (APA), agencies must follow extensive procedures to create binding (legally enforceable) regulations. These procedures serve as an important check on agency rulemaking and, although complex and time-consuming, provide meaningful opportunity for the public to participate. Beyond promulgating formal rules, agencies issue “guidance documents” or policy statements to clarify how they interpret regulations and statutory law. Because these guidance documents are non-binding, meaning noncompliance cannot result in an enforcement action against a party, the APA excludes them from its formal rulemaking requirements.
However, the integrity of the rulemaking process is jeopardized where agencies fail to make available their guidance documents and where agencies use guidance documents, rather than statutory or regulatory law, as the basis for enforcement. Ultimately, agencies have the potential to abuse the rule of law and inhibit due process in their use of guidance documents.
President Trump’s Executive Orders enact notable safeguards to prevent this abuse and further reaffirm the rule of law and due process in agency rulemaking.
The first Executive Order titled Promoting the Rule of Law Through Improved Agency Guidance Documents promotes agency transparency by requiring agencies to make all active guidance available online in one single, searchable, indexed database. Additionally, the order requires agencies to allow opportunity for public comment when seeking to issue significant new guidance.
The second Executive Order titled Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication protects due process by precluding agencies from treating noncompliance with guidance documents as the sole basis for an enforcement action. The order limits the use of guidance documents to be used only to articulate the agency’s understanding of how a statute or regulation applies to a particular circumstance.
President Trump’s orders have been well received on both sides of the aisle. In a commentary for the Daily Signal, former chief of staff and counselor for OIRA Anthony Campau and Paul L. Larkin Jr. from the Heritage Foundation explain:
The president’s new executive orders are important additions to the substantive and procedural reforms already accomplished. These actions aren’t about deregulation or cutting red tape, but are about reforming the regulatory process itself to make it fairer and more accountable to the people. These good government reforms are necessary, important, and worthy of celebration.
Former OIRA Administrator under the Obama Administration Cass Sunstein likewise supports President Trump’s new orders:
Very interesting and in many ways positive Executive Order from President Trump, trying to ensure that guidance documents are transparent and consistent with the Administrative Procedure Act.https://t.co/Zly5ob0wQW— Cass Sunstein (@CassSunstein) October 10, 2019
Mr. Sunstein elaborates in an op-ed for Bloomberg that Trump’s new orders deserve praise and applause for increasing transparency and fidelity to law. Further, Mr. Sunstein believes these orders serve as important steps in the right direction.