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By Emmett J. McGroarty
On October 9, 2019, President Trump signed Executive Order 13891, entitled “Promoting the Rule of Law Through Improved Agency Guidance Documents.” Its purpose is to rein in a significant part of the vast administrative state. A guidance document refers to memoranda issued by a federal agency that informs third parties—federal grantees, states, private parties—how the issuing agency intends to handle an issue under its jurisdiction.
As the name implies, guidance documents are not meant to be legally binding. If an agency wants to issue a legally binding rule, it must be based on a grant of authority from Congress and follow the procedures of the Administrative Procedures Act (APA). One concern with guidance documents, though, is that they will address, and have addressed, matters that should be put through the APA process and issued as a regulation. A second concern is that, whether intended or not, they give the federal agency a big stick: private parties and states will adhere to the guidance in fear that they will otherwise be subject to legal action by the agency. A third concern is that, unlike regulations that are put in a publicly available code on the internet, there is no systematic way for the public to research guidance documents, giving such documents an arbitrary, find-me-if-you-can character.
EO 13891 requires each agency to “establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component.” It also:
· Requires each agency to review its guidance documents and rescind those guidance documents that it determines should no longer be in effect.
· Requires each agency to retain in effect only those guidance documents that it puts on its relevant database.
· Prohibits an agency from citing, using, or relying on guidance documents that are rescinded.
· Requires each agency to promulgate regulations for the future issuance of guidance documents.
· Imposed a February 28, 2020 deadline for the agencies to establish their respective online databases of guidance documents.
Wayne Crews at the Competitive Enterprise Institute is keeping track of the agencies’ progress in implementing the executive order. He reports that, so far, the agencies have retained an astounding 22,936 guidance documents. Notably, that number will increase because many agencies have not yet posted their guidance documents and agencies have another 120 days to amend their websites.
EO 13891 is not a panacea, nor has the administration claimed it to be. Nevertheless, it is a step toward reining in the vast administrative state, and that’s a critical issue. Public trust in government has been ticking downward since the Pew Charitable Trust started measuring it in 1958. That’s not a straight line down, and at seventeen percent in March 2019, it rates higher than the all-time low of ten percent in 2011. Nevertheless, trust has been drifting steadily downward since its early ratings above seventy percent.
Ultimately, judicial and congressional action will be needed to rein in the administrative state. But the executive branch can set the tone for that through the issuance of executive orders and insisting on accountability through the Office of Management and Budget. It is critical, though, that this be done. If not, Americans will grow ever more frustrated with their government and will lose all claim to being a government “of the people, by the people, for the people.”