Why Biden Cannot Simply Revoke Trump’s Executive Order 13891 Requiring the Discipline of Guidance Documents

President Joe Biden’s progressive agenda shapers have prepped dozens of executive orders for him to autograph during his first few days in office. Prominent among them was day one’s “Revocation of Certain Executive Orders Concerning Federal Regulation.” It eliminated the one-in, two-out Trump directive regarding new regulation that was meant primarily as a means of freezing costs.

Biden’s revocation order also eliminated Trump’s October 2019 Executive Order 13,891, “Promoting the Rule of Law through Improved Agency Guidance Documents.” In its requirement that agencies create “a single, searchable, indexed database that contains or links to all guidance documents in effect,” Trump’s order was one of the more significant advances in administrative disclosure yet seen.

The Biden administration either believes that it does not promote rule of law for the public to enjoy ease of access to that to which they are bound, or they know and do not care. The move makes Biden the Edward Scissorhands of government transparency, all in the name of  erasing the “former guy,” as the president and the Associated Press jointly put it. But it’s not just Trump getting erased, it’s transparency and fairness for those agencies regulate.

During 2020, many (certainly not all) agencies created compliant guidance document portals depicting over 73,000 entries. The linked table just below is a one-stop portal capturing the guidance documents most readily available thanks to Trump’s order.

As the chart above indicates, some of these agencies did more than create their guidance portals.

Thirty departments and agencies, including a handful of independent agencies that were not bound by Trump’s executive order, also responded to E.O. 13,891’s call to issue a final rule on guidance (FROG). These internal guidance procedures explicitly called for a “searchable” database containing all active guidance or otherwise announcing the existence of a portal. Some of the language is boilerplate or similar across agencies, but highly important in the uniform calls for public access to documents and in the clarification that guidance “lacks force and effect of law.” Here are a few examples in no particular order (and all are available in the linked version of the portal above at https://bit.ly/2TfWzZ2). Each is relatively short, just a few pages long.

  • The Council on Environmental Quality (CEQ) rule announces that “CEQ adds a new part 1519 to the Code of Federal Regulations to set out its procedures for the development and issuance of guidance documents consistent with the direction and reflecting the policies described in E.O. 13891 and OMB M–20–02,” and referenced the requirement that agencies “make guidance documents publicly available in an indexed, searchable database online.”
  • For the Department of Housing and Urban Development (HUD), “Guidance portal” is defined at § 11.2(b) as the single, publicly accessible, searchable website where HUD posts or links to all guidance documents that are in effect.
  • The Department of Education wrote that its “guidance portal is a single, searchable database that contains or links to all guidance documents in effect from all offices in the Department.”
  • At the Department of Health and Human Services, “The guidance repository shall be fully text searchable and contain or link to all guidance documents in effect that have been issued by any component of the Department.”
  • At the Department of Commerce, “In order to further assist the public, going forward, the Department …  will provide access to its guidance documents through a centralized web portal, www.commerce.gov/guidance (‘Web Portal’), dedicated to guidance documents, with links to additional, corresponding web pages maintained by individual bureaus of the Department.”
  • The Equal Employment Opportunity Commission says “All current guidance documents shall made available through a single ‘guidance portal’ on the Commission website, together with a single, searchable, indexed database available to the public.”
  • The Railroad Retirement Board “maintains on its website a guidance portal from which all guidance documents may be accessed. Unless a guidance document is on the website, it is not considered to be in effect.”
  • The National Endowment for the Arts will “Ensure all effective guidance documents, identified by a unique identifier which includes, at a minimum, the document’s title and date of issuance or revision and its RIN, if applicable, are on its website in a single, searchable, indexed database.”
  • Similarly the National Endowment for the Humanities will “Oversee the creation of a guidance portal on the agency’s website” and “Ensure all effective guidance documents, identified by a unique identifier as described in § 1173.4(b)(4), are on the guidance portal in a single, searchable, indexed database, and available to the public.” 
  • The Office of Government Ethics issued “a regulation to detail the process for the issuance of, modifications to, and petitions regarding guidance documents, as they are defined by the Executive Order. Additionally, the regulation states that OGE will post all guidance documents in a new guidance portal on its website.”
  • The Corporation for National and Community Service shall “Ensure all effective guidance documents, identified by a unique identifier which includes, at a minimum, the document’s title and date of issuance or revision and its RIN, if applicable, are on its website in a single, searchable, indexed database, and available to the public”
  • NASA, heretofore non-compliant, as far a portal goes, says that its divisions shall “Ensure all effective guidance documents, identified by a unique identifier which includes, at a minimum, the document’s title and date of issuance or revision and its RIN, if applicable, are on its website in a single, searchable, indexed database, and available to the public.”

These FROGs are final rules compliant with the Administrative Procedure Act notice-and-comment process, apart from four issued as interim rules and one direct final rule (so we can say the swamp contains iFROGs and dFROGs) for which the APA also provides when “good cause” warrants it. NASA’s rule just noted is one such iFROG without notice-and-comment:

This final rule merely incorporates requirements of the order and NASA’s existing internal policy and procedures for issuing guidance documents into the CFR. Therefore, in accordance with 5 U.S.C. 553, the Administrator of NASA has concluded that there is good cause to publish this rule without prior opportunity for public comment.

The upshot of this is that while Biden may have revoked Trump’s executive order, these FROGS are now part of the Code of Federal Regulations (CFR). They’re law. Biden cannot remove the portals without jumping through hoops himself or having agencies backtrack, which is what we refer to in the title of this report. The agencies (who we must acknowledge did not all really want to set up Trump’s portals) need to undertake a brand-new rulemaking to take the portals away. Or they could, as is likely, just issue interim final rules to formally obscure information from the public.

Biden’s revocation order intones, “The Director of the Office of Management and Budget and the heads of agencies shall promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof. … If in any case such rescission cannot be finalized immediately, the Director and the heads of agencies shall promptly take steps to provide all available exemptions authorized by any such orders, rules, regulations, guidelines, or policies.”

But agencies can’t get rid of a rule; they can only write a new one to replace it. If they simply write rules to strike, we can watch them while they do it. In a normal world, the optics of it would be really bad.

Consider the Tennessee Valley Authority (TVA), which never established a compliant portal to begin with and did not have to as an independent agency. Commendably, though, the TVA did issue a FROG, but then after noting that Biden’s EO deleted Trump’s guidance portal executive order, the TVA posted on its landing page the following:

In response to President Biden’s Executive Order, TVA is working to issue a final rule to rescind the regulations published at 18 C.F.R. Part 1301 and has removed previously identified guidance documents from this webpage. … This webpage will be archived and no longer active upon the regulations published at 18 C.F.R. Part 1301 being rescinded.

See a screenshot here:

 

Congress needs to watchdog other agencies doing this, and make a public issue out of the removal of documents from public view. As it happens, Sen. Ron Johnson (R-Wisc.) and 20 senators wrote to Biden urging him to reinstate the transparency in guidance order.

As the senators pointed out, Vice President Kamala Harris, as a California senator, supported the Guidance Out of Darkness (GOOD) Act, which is in some respects a legislative version of what Trump’s E.O. 13,891 did. The elimination of procedures for guidance document disclosures that enjoy bipartisan support does not look particularly GOOD, so to speak, being bad for transparency and public accountability. 

Biden’s agencies are also aware that Trump allowed exceptions and waivers for his own order, and his revocation order seeks to exploit those too. HUD, for example, had specified in its FROG that:

A senior policy official may request a waiver of the requirement to post a guidance document or a category of guidance documents. Such a request should be submitted through OIRA for review. A request for a waiver should clearly explain the purpose of the document(s) and why making the document(s) publicly available on an agency website would cause specific harm or otherwise interfere with the agency’s mission.

Biden has already instructed the swamp to look for such waivers to submerge Trump’s directives and in turn the portals, but it is hard to see how disclosure as a general rule would ever “cause specific harm.”

Some late-issued FROGs are also presumably vulnerable to a Congressional Review Act resolution of disapproval process, but the optics for Democrats publicly arguing to reduce the public’s access to guidance documents that may affect them are also not good.

In contrast to the agencies’ potential to wiggle out of guidance requirements (the 30 agencies with FROGs, while impressive in the current politicized environment, nonetheless account for less than half the agencies represented in the one-stop portal nearby), the independent agencies that did comply (like those bulleted above) deserve some sort of medal. The Peace Corps, for example, even with no guidance portal, commendably, issued a FROG.

Independent agencies were never bound by Trump’s transparency executive order in the first place. Granted, they are not always the Earth-shakers among regulatory bodies, but their participation was significant. The significance now is that, just as independent agencies were not bound by Trump’s order to create a portal in the first place, they are now not bound by Biden’s new order to revoke their FROG.

Another potential barrier for Biden’s revocation, if some affected party decides to pursue it, is that recent precedent has held that an administration may not be able to get rid of a predecessor’s directives, without appropriate rationale and process when doing so would disrupt the lives of citizens of other countries. The same potentially will be the case with executive order revocations of directives upon which citizens have come to rely when doing so would be disruptive. For the record, it is devastating to liberty that executive orders of one president cannot be revoked by a successor, but such are the fruits of the administrative state as opposed to Article I lawmaking.

Still another wrinkle for Biden’s “erasure” is rooted in most agencies’ E.O.-compliant declaration in their FROG that, if a guidance is not posted on its portal, it is rescinded. Here, it not clear what Biden can do, even if a FROG is rescinded. If a guidance has evaporated from an agency before it ever materialized on the portal, there isn’t any vehicle or venue upon which it would automatically restore FROG or no FROG. The process for reissuance is unclear. If not a portal—then where, exactly, would guidance resurface? Several agencies, as alluded to above in the Railroad Retirement Board bullet, noted the non-applicability of that which does not appear. For further example:

  • The Department of Veterans Affairs (VA) states “VA has a guidance website that contains, or links to, guidance documents that are currently in effect. VA will not cite, use, or rely on any guidance document that is not posted on the website existing under Executive Order 13891, except to establish historical facts.”
  • Architectural and Transportation Barriers Compliance Board: “Any guidance document not posted on the Agency’s guidance portal are considered to be rescinded and neither the Agency nor a party may cite, use, or rely on such a guidance except to establish historical facts.” 
  • National Endowment for the Humanities: “any guidance document not posted on the guidance portal is rescinded, and that neither the agency nor a party may cite, use, or rely on any guidance document that is not posted on the guidance portal, except to establish historical facts.”
  • The Pension Benefit Guaranty Corporation (PBGC) “will maintain on PBGC’s public website a single, searchable, indexed database that contains, or links to PBGC’s guidance documents at www.pbgc.gov/guidance. Any guidance document posted on the database is final unless it is a proposed significant guidance document.”
  • The U.S. Department of Agriculture (USDA) asserts that any “USDA agency that issues guidance documents shall … [e]nsure all guidance documents in effect are on its website in a single, searchable, indexed database, and available to the public. Guidance documents that do not appear on the website are considered rescinded.”

These bullets immediately above reiterate the FROG portal imperative but also stress that anything not listed is no longer a valid guidance. How the Biden administration will deal with the tension and the questions over reinstatement remains to be seen and bears close monitoring.

The progressive policy agenda drives the new administration, so Biden will naturally prioritize elimination of some of the FROGs from agencies whose regulations he wants to amplify to advance that agenda. Biden’s January 20 “Fact Sheet: List of Agency Actions for Review” contains dozens of rulemaking entries and three FROG targets: that of the aforementioned CEQ and those of the Environmental Protection Agency and the Department of the Interior.

Many of the FROGs address the designation by OMB of significant guidance and call for the opportunity for public notice and comment. Under Trump’s order and some FROGs, rules are to be provided to the Office of Management and Budget for “significance” determinations and specifications for notice-and-comment if they were so deemed. For example:

  • For a “signficant guidance document,” the Office of Personnel Management “shall invite public comment on the draft document for a minimum of 30 days, and shall prepare and post a public response to major concerns raised in the comments, as appropriate, on its guidance Web portal, either before or when the guidance document is finalized and issued.”
  • The Department of Interior’s FROG specified that “Guidance documents proposed to be issued” will be submitted “to OIRA for significance determinations. If OIRA determines that a proposed guidance document is significant, then the Bureau/Office must obtain a Z–RIN and clearance through the Data Tracking System (DTS) or successor data management system. Each proposed guidance document determined to be significant must be approved by the Secretary before issuance.”

We do not harbor illusions that agencies would have aggressively pursued these significance determinations even had the Trump administration remained in office. No one stood or stands ready to make agencies behave, but we point out the issue here for posterity to do something about.

In conclusion, we question the wisdom of revoking the disclosure of guidance documents and the enhanced processes for public input on them. If one is inclined to think, as is reasonable, that the agency portals established in Trump’s E.O. 13,891 were a good idea, then the public needs to closely watch for each agency’s rule to stomp its FROG. We have seen the TVA announcement above and should watch for more.

Biden can make up for the transgression entailed in his “Revocation of Certain Executive Orders Concerning Federal Regulation” by going beyond Trump. Some agencies reported guidance before the Trump order hit the scene, taking their own initiative or operating under the auspices of earlier Bush administration directives on guidance disclosures. There are a number of elements that could be carried out by executive action that even Trump did not do. For example, Biden can require a single government-wide portal (like the one above, but official) rather than Trump’s multitude of them.

Guidance document reporting should be incorporated into the twice-yearly Unified Agenda and so on. Congress should engage in the wake of the Senate letter to Biden. There should be hearings, and review of what agencies do on guidance documents henceforth. And since the vice president supported the GOOD Act, that legislation should be passed at last. If Biden wants to sign that legislation and take credit for guidance disclosure away from Trump, he can.