Under Sessions the Justice Department is following a process that affirms good government and respects the rule of law
This is a piece on “guidance” first published at The Weekly Standard. Constraining what agencies do in the name of guidance is essential to the administration’s deregulatory project. Already the Justice Department has withdrawn 25 guidance documents found to be improper or unnecessary. Officials confirm the department is reviewing additional guidance documents and expect more to be withdrawn.
A major theme of the Trump administration lies in its effort to discipline the regulatory state, with the Justice Department playing a key role. In November Attorney General Jeff Sessions announced that the agency would scrupulously follow the rule-making process provided by Congress, which includes public comment on proposed rules. The Obama administration did not always adhere to that process and instead provided “guidance” as to what it thought a particular rule should be, even if Congress had not given it the authority to do that. Said Sessions: “Any guidance . . . used to circumvent the regulatory process or that improperly goes beyond what is provided for in statutes or regulation,” should not be given effect.” Nor, he added, should any guidance that is “outdated.”
Shortly before Christmas, Sessions announced he had withdrawn some 25 guidance documents, dating to 1975, that the department had judged to be “improper” or “unnecessary” (meaning outdated). Sessions did not say how many of the 25 fell into either category, but a senior department official said that the majority were outdated. Guidance documents tend to “sit there and stack up and are rarely repealed.” Today there may be thousands of guidance documents in government storage. If that is the case, most of the documents are probably no longer needed and thus candidates for quick repeal.
There is a good government theme in the department’s new approach to regulation. After all, why should guidance documents be allowed to stack up when there is no reason to keep them around?
But there is also a rule of law theme. “Any time the executive is making rules,” said the department official, “it [can do that only] with delegated authority,” meaning the authority given the executive by Congress.
The Obama administration assumed that authority in order to advance its political views—on transgender bathrooms, to cite the most conspicuous example. Early last year the Trump administration rescinded the bathroom guidance documents, observing that they did not “contain extensive legal analysis or explain how the position is consistent with the express language of [relevant federal law], nor did they undergo any formal process.”
Sessions is trying to prohibit regulation through guidance. It is up to each department and agency to decide whether to follow his example. Meanwhile, Senator Charles Grassley has written President Trump a letter applauding the attorney general’s “exemplary leadership in regulatory accountability” and urging him “to promptly see to it that similar measures are put in place across your administration.”
Were that to happen, the regulatory state might become more constrained, and our government of separated powers more what it was intended to be, a safeguard of liberty.
