The FROGs are back: Will White House hop to it on guidance documents?

Donald Trump’s 2019’s Executive Order 13891, “Promoting the Rule of Law through Improved Agency Guidance Documents,” established online portals and inventories at agency websites. It required departments and agencies to issue formal rulemakings on public-fairness procedures with respect to how they would deploy and rely upon guidance.

This critical directive came very late in Trump’s first term and was therefore not fully implemented. Still, by the time Trump left office in 2021, 32 departments, agencies and commissions had issued final rules on guidance—or what I like to call FROGs.

And then? Along with Joe Biden’s evisceration of the entire Trump regulatory streamlining agenda, he stomped the FROGs.

Unfortunately, by the time Trump entered office for the second time, 24 (of the 32) departments and agencies that had adopted formal guidance document public-fairness and transparency procedures under Trump actually wrote new rules to affirmatively disavow and eliminate the nascent disclosures,as shown in the table here.

We’ve seen the last of the stomped FROGS, however. The most recent among those above were the Department of Justice’s January 21 “Processes and Procedures for Issuance and Use of Guidance Documents,” and the Commerce Department’s December 18 “Promoting the Rule of Law Through Improved Agency Guidance Documents Rescission.”

As Tony Woodlief of the State Policy Network notes with respect to the DoJ rules, these came late enough to be addressed creatively by the 119th Congress using the Congressional Review Act’s resolution of disapproval process. 

The inventory above is presented as something of a bookmark or reference for future students of the machinations of the regulatory state. The haste of repudiation and boilerplate language conforms well with suspicions of agency self-interested behavior rather than public purpose. Much as agencies resist Trump now, they had plenty incentive to balk at guidance fairness back in 2019.

Most elements of Trump’s new streamlining agenda now explicitly incorporate guidance documents, to prevent their being leveraged as sub-regulatory tools to evade public notice and comment. These range from Trump’s day one “Regulatory Freeze Pending Review” to the most recent EO 14219, “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative.”

The likelihood is that Trump will reinstate guidance portals as well as guidance fairness machinery early enough in his term that the new FROGs have legs.

For more see:

“Trump/DOGE: To End The Rule Of Flaw, Tackle Regulatory Dark Matter,” Forbes

“Darklore Depository 2024: A Halloween Inventory Of Federal Agency Guidance Documents,” Forbes

“Stomping FROGs: An Updated Inventory of Biden’s Elimination of Trump-Era Final Rules on Guidance Document Procedures,” Competitive Enterprise Institute

“Deep State Guide to Resisting Trump’s Executive Orders on Guidance Document Abuse,” New Civil Liberties Alliance