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One Way the Justice Department Is Giving Power Back to Congress

"Guidance documents" are supposed to inform and explain. But Obama used them to regulate. Jeff Sessions is undoing that legacy, as I explained in an article published earlier this month at, which you’ll find below.

The Obama administration used “sub-regulatory” methods in a number of areas, not least school discipline. There the Education Department sent a letter to state and local education officials declaring that it would enforce “disparate impact” in school discipline cases investigated under Title VI of the Civil Rights Act of 1964. Thus, a policy resulting in disciplinary outcomes that were disproportionate by race and ethnicity could be judged illegal under the nondiscrimination provisions of Title VI of the Civil Rights Act of 1964. That famous law mandates equal treatment, not equal results. That was the understanding of the law then and remains so today. If Congress wants to add disparate impact to Title VI, it certainly is free to do so. But the executive branch is not. 

CEO board member Jason Riley, a fellow at the Manhattan Institute and columnist for The Wall Street Journal, has written on disparate impact. And CEO president and general counsel Roger Clegg has worked on the topic for the Federalist Society’s Regulatory Transparency Project. This Thursday at 12 noon both Riley and Clegg will be discussants on a Federalist Society Teleforum call on disparate impact.
During the 2016 campaign, Donald Trump admired President Obama’s willingness to go around Congress and make law on his own authority. So it was reasonable to think that Trump, too, might become a unilateralist. But, at least in one important context, that isn’t happening.

Consider, for example, the Justice Department’s new policy on so-call “guidance documents.” Attorney General Jeff Sessions has issued a memo prohibiting the department from using documents that have “the effect of adopting new regulatory requirements or amending the law.” Not all guidance documents do that. Those that explain existing law, for example, are fine. But ones that “purport to create rights or obligations binding on persons or entities outside the executive branch” are not.

The Constitution does not give executive agencies the authority to make regulations outside of the process required by Congress, which is known as “notice and comment.” Yet too often, Sessions said in a speech recently to the Federalist Society, agencies have forgone that process and made new rules through guidance documents, even by simply sending a letter to regulated entities. Thus did the Obama administration rewrite Title IX so that sex meant the gender you identify with, not just the one you’re born with—guidance the Trump administration has rescinded.

Sessions says that “the Justice Department and other agencies have blurred the distinction between regulation and guidance documents.” This means there is work to be done if that distinction is to regain its clarity. Associate Attorney General Rachel Brand, the third ranking officer in the department, will conduct a review of existing guidance documents at Justice and recommend which should be repealed or amended.

It bears noting that the Justice Department is not speaking for those “other agencies” guilty of distinction-blurring. They will need to advise their own staffs. Nor does the department have the regulatory work load found at some agencies. But the department has respect throughout the government and could lead in this area by example.

What’s heartening for those who care about constitutional self-government is that the Justice Department is seeking to enforce a basic principle: that agencies may regulate only within the authority Congress has delegated. When agencies exceed their authority, they do so at the expense of Congress and the people. They tread on the Constitution. That is what the attorney general rightly wants to avoid.