Executive orders and proclamations expanding the scope of Washington over the nation’s business characterized much of the Barack Obama presidency.
The former president himself–not just his critics–called this the “pen and phone,” and boasted of going around Congress to get things done. Similarly, the federal agencies had their foot on the gas, making proclamations without formal rulemaking to such an extent that it seemed apt to call the phenomenon regulatory dark matter.
Now, President Trump wields the “pen and phone.” Over the next four years, perhaps he’ll overreach; some courts maintain that he has with respect to travel and sanctuary cities.
But in large part, the big lesson of Trump’s first 100 days is that the pen and phone can be used to reduce government, not just expand it.
Of unique importance, however, most recently the White House issued two executive orders on a single day to roll back regulatory actions at the Department of Interior and the Department of Education.
Notable about these agency-specific orders, alongside the January regulatory oversight order, is their emphasis on prior sub-regulatory “lawmaking” by agencies and the executive branch.
First, Trump directed the Interior Department to review of abuses of the 1906 Antiquities Act over the past 20 years (“Review of Designations Under the Antiquities Act“).
The Act has enabled presidents to issue unilateral proclamations designating wide swaths of territory as national monuments, putting resources off limits for development. Prominent recently was Obama’s vast August 2016 expansion of the Papahanaumokuakea Marine National Monument, using the purported but controversial authority under the Antiquities Act to place landscapes and seascapes off-limits to use and development, despite local stakeholder objections.
The local stakeholder objections are most pertient. The “misuse and abuse” of the 1906 Act can’t be summarized better than my colleague R.J. Smith, who described the Act’s origins as a response to the unprotected nature of much of the West:
“[T]he law was meant to prevent the looting and destruction of Indian artifacts and ruins, local natural landmarks, and significant fossil sites and petrified forests by giving special protection to the smallest necessary area surrounding them.
It has long since served its purpose, however. Increasingly over the past quarter century, the Act has been used not to protect special sites, but rather to exercise national land-use control over vast areas of the West and effectively turn millions of acres at a time into de facto national parks or wilderness areas. … It has usurped the proper role of Congress in creating national parks and wilderness areas and disenfranchised the American people, especially those most affected by the designation.”
The Trump order directs Secretary of the Interior Ryan Zinke, in consultation with other cabinet agencies, to review the past 20 years of monument designations “where the designation covers more than 100,000 acres, where the designation after expansion covers more than 100,000 acres, or where the Secretary determines that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders.”
Due in 120 days, “The final report shall include recommendations for such Presidential actions [and] legislative proposals” to modify prior inappropriate designations.
The second executive order (“Enforcing Statutory Prohibitions on Federal Control of Education“) seeks to affirm state and local level (not federal) authority over education policy, with a 300-day assessment of the scale of federal overreach.
Trump’s order declares:
“It shall be the policy of the executive branch to protect and preserve State and local control over the curriculum, program of instruction, administration, and personnel of educational institutions, schools, and school systems, consistent with applicable law.”
The order calls for a “Review of Regulations and Guidance Documents,” and directs Secretary of Education Besy DeVos to “rescind or revise” any that violate prohibitions on federal “direction, supervision, or control over areas subject to State and local control”
What the heck are “guidance documents? The order defines them as:
“any written statement issued by the Department to the public that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue, including Dear Colleague letters, interpretive memoranda, policy statements, manuals, circulars, memoranda, pamphlets, bulletins, advisories, technical assistance, and grants of applications for waivers.”
Why does that matter? Remember the flap over federal orders on transgender bathrooms? Who doesn’t. That was a “Dear Colleague” guidance document co-produced with the Department of Justice’s Civil Rights Division: not a law passed by Congress; not even a regulation that underwent the normal public notice and comment period. It required inclusion of “gender identity” in the definition of “sex” and directed schools to allow transgender students to choose which bathroom or locker room to use.
The dispute drove headlines as well as state reactions, notably that of Texas and other state attorneys general who sued the Education and Justice Departments over what they called “efforts to unilaterally re-write the law in flagrant disregard for the checks and balances provided by the other branches of government” and “systematically abus[ing] the exceptions to the rulemaking process”; they described the action as “regulatory dark matter.”
DeVos already withdrew the federal bathroom guidance. For an idea of what’s to come, Trump’s order directs that:
“The Secretary shall, as appropriate and consistent with applicable law, rescind or revise any regulations that are … inconsistent with statutory prohibitions. The Secretary shall also rescind or revise any guidance documents that are … inconsistent with statutory prohibitions. The Secretary shall, to the extent consistent with law, publish any proposed regulations and withdraw or modify any guidance documents pursuant to this subsection no later than 300 days after the date of this order.”
What might they find? According to a 2015 bipartisan Senate-appointed Task Force on Federal Regulation of Higher Education, Department of Education guidance documents imposing mandates on colleges and schools issued at a rate of one per business day.
Apart from the transgender guidance, high-profile and controversial Education Department directives have included:
- Guidance (a 2011 “Dear Colleague”) to colleges and universities on sexual assault and harassment that generated strong responses from and organization among mothers of accused students.
- A guidance letter (a 2010 “Dear Colleague”) on bullying and harassment.
- A 2016 Policy Statement from the Education Department and the Department of Health and Human Services “preventing and severely limiting expulsion and suspension practices in early childhood settings.”
Another colleague of mine, Hans Bader, has detailed overreaching and central planning of school policy from Washington bureaus without basis in law, and without notice-and-comment regulation.
The uniqueness of some of Trump’s orders lately isn’t just that they go after the bureaucracy by targeting notice-and-comment rules that overrextend. The uniqueness resides in highlighting the cleverness by which agencies operate outside the bounds of that process.
Dealing with “guidance” and “proclamations” adequately will require congressional action and legislation. But now there’s a light shining on dark matter, signaling that, while the game may not be up, it’s been noticed.
Originally posted to Forbes.