Laws Have Mercy: Here is How Biden is Restricting Access to Regulatory Guidance Documents
A significant component of Joe Biden’s first 100 days has been the rapid reversal and work-in-process unwinding of former president Donald Trump’s efforts to streamline federal regulation. This began with his “Executive Order on the Revocation of Certain Presidential Actions.”
None of that is surprising, particularly Biden’s elimination of Trump’s one-in, two-out approach to freezing regulatory costs. No one thought he would keep that.
But not everything Trump did was a bad idea, no matter much of a critic one may be, when it comes to disclosure and accountability. Some of Trump’s directives not only should have been kept by Biden, but now should be restored by Congress.
One of Biden’s revocations is particularly significant because it is unfolding before our, and policymakers’, eyes. It and involves agencies removing from public view information that is—or was—readily available largely because of Trump. This ill-advised Biden revocation was of Trump’s October 2019 Executive Order 13891 called “Promoting the Rule of Law through Improved Agency Guidance Documents.”
Let’s back up just a bit to explain this.
The Trump administration took more explicit steps than any predecessor to address the proliferation of federal agency guidance documents. Guidance documents consist of the thousands of sub-regulatory memoranda, notices, administrative interpretations, decrees and various other forms of regulatory dark matter that can have regulatory effect despite that being against the rules. Examples during the Obama administration included:
- Waivers of statutory mandates contained within Obamacare itself via the administration’s unilateral extension of the employer mandate deadline, and the continuation of non-compliant health insurance policies;
- The Department of Justice/Education Department “Dear Colleague Letter on Transgender Students“;
- From the National Highway Traffic Safety Administration, driverless car guidance, as well as “commonsense guidelines” on a “Driver Mode” for smartphones;
- The Department of Labor’s “administrator’s interpretations” on whether one is an independent contractor or an employee, and on franchising/joint employer status.
As these examples imply, the monitoring of guidance documents is important since agencies discouraged from or reluctant to issue ordinary notice-and-comment regulations may rely more heavily on sub-regulatory guidance.
Rollout and maintenance of any new regime like the American Family Plan Biden is unveiling in his address to Congress will be heavily driven by guidance document.
Before Trump, the most prominent instance of grappling with the hidden universe of guidance documents had been President George W. Bush’s Executive Order 13422, which subjected the more significant guidance documents to Office of Management and Budget review. A 2007 OMB Good Guidance Practices memorandum laid out even more detailed procedures.
Trump built upon this. His initial 2017 one-in, two-out directive encompassed not just significant regulatory actions, but also significant guidance on a case-by-case basis. Agencies at the time also revoked guidance and directives that were not even included among proclaimed regulatory reductions in “progress reports” on the one-in, two-out initiative.
In 2019, two additional major Trump White House developments occurred with respect to guidance documents. April 11 brought an update of a 20-year-old OMB memo to agencies called “Guidance on Compliance with the Congressional Review Act.” (Yes, ironically, itself a guidance document.)
The April 2019 OMB memo reinforced the ignored fact that guidance documents are “rules” and underscored the disregarded legal obligations agencies have to send new rules and guidance to both Congress and the Government Accountability Office before they can take effect according to the 1996 CRA. The memo also reinforced ensuring that rule and guidance status as “major” or not gets formally established before rules are published and considered binding.
Read the full article at Forbes.