In preparing an August 2022 update on executive branch sub-regulatory guidance documents and memoranda (the observable tally is 107,000 but vastly more exist), a few observations and warnings come to mind for when Congress sets about disciplining guidance practices and the armies of issuers responsible for them.
The years since 2020 brought forth a rapid succession of major legislation that will escalate regulation of the economy and society. Those were accompanied by Presiden Biden’s “modernization” of federal bureaucracy and “whole-of-government” regulatory interventions such as the federal agency “Equity Assessments” embodying new forms of trickle-down regulation.
The 118th Congress, to not be part of the problem, will need to mount a major groundwork campaign to restore some semblance of constitutional normalcy and limitations on federal power. This includes ending the predatory abuse of crisis by lawmakers.
“Restoring normalcy” might not be the right phrase when it comes to the guidance document phenomenon, as nothing was ever normal about the administrative rulemaking state nor its predictable, inevitable decay into non-democratic rule by guidance. For detail on regulatory dark matter marvel, see “Mapping Washington’s Lawlessness.”
New emergency groundwork is important given the domestic crisis being created by Biden’s overturning of constraints on regulators. Biden didn’t do this solely with respect to ejecting Trump-era initiatives like “one-in, two-out”; Biden has replaced even the limited pre-Trump regulatory oversight norms with progressive boosterism and threatening to “act without Congress,” which typically means orders, memoranda and agency guidance.
In recent days we have documented the remnants of the Trump-era guidance document public-access portals. Federal reassertion of power entails agencies writing notice-and-comment regulations to wipe out Trump-era constraints on the issuance of guidance.
As noted, we find the “inventory” this summer to stand at over 107,000, while in reality sub-regulatory decrees number in the hundreds of thousands. Some months before Trump left, the midstream count stood in the 70,000s. Everything remains undercounted; nonetheless, the ability to point directly to 100,000 marks a vast improvement over the few thousand documents that agencies were capable of producing just a few years ago even when Congress demanded specifics.
To address guidance documents, we have proposed both legislation and executive actions. Legislative proposals are to be found in the aforementioned “Mapping Lawlessness” report, in testimony presented to the Senate Homeland Security and Government Affairs Committee back in 2016, and a 2022 appeal for “An Emergency Law to Extinguish Regulatory Dark Matter.” Important proposals in recent Congresses include the which stands for Guidance out of Darkness (GOOD) Act and several offerings by Sen. Mike Lee, who, relatedly, proposes requiring Congress to assent to extensions of presidential emergency declarations.
In the course of compiling the summer 2022 snapshot compilation of agency guidance documents, a few observations come to the fore with respect to recommendations necessary to set the stage for restraint, control, oversight, and supervision.
We start with the fact that we have reached a high undercount of guidance documents to which one can directly link online from one non-official portal prepared by yours truly. This would not have happened without Trump’s Executive Order 13,891.
My unofficial portal should be replaced by Congress—not by another executive order—with an official and superior one mandated by law. The inventorying exercise demonstrates that Congress should require the establishment of a single, one-stop government-wide portal across all agencies.
Such a central megaportal should include independent agencies. Congress should also require that guidance indicate whether it is regulatory or deregulatory.
The common Megaportal should also incorporate common classifications to minimize ambiguity and systematize what gets counted as guidance. Everything should be searchable. Each guidance document or element should a chronological numerical unique identifier. Breakdowns by sub-agency and sub-subagency should be made clear.
The need for a megaportal to certify that each piece of guidance has been submitted to the Government Accountability Office and to both Houses of Congress as required by the Congressional Review Act was articulated in an April 2019 memo to executive agencies by then-Office of Management and Budget director Russell T. Vought on “Guidance on Compliance with the Congressional Review Act.” The 118th Congress should explore these requirements and look critically at whether most guidance is legitimate at all—or instead invalid or void. Congress should also ask whether or the Office of Management and Budget has had an opportunity to review and make a determination as to “significance” or “economically significance” of any given piece of guidance.
In the meantime, I’ll continue to compile snapshot partial inventories of regulatory dark matter, such as can be found. Getting a handle on the scale of guidance versus the lesser quantity of laws and regulations can help build a bridge to Article I restoration.