After decades of unchecked expansion of the administrative state, Washington finally has recognized that it has a problem. The current administration has made an earnest commitment to regulatory reform as a matter of policy. But to achieve reform beyond the whims of the current administration, now is the time to embrace more permanent limitations.
One troubling trait of the contemporary administrative state is its rampant abuse of agency “guidance.” Instead of issuing formal rules, agencies have come to rely on informal interpretations, advice, statements of policy and other forms of regulatory “guidance” that declares agency views on what the public should or should not do. Guidance is supposed to explain existing legal obligations, and both the Constitution and federal statutes forbid agencies from using guidance to make new law by issuing requirements or prohibitions on regulated persons. But that has not stopped federal agencies from doing it anyway.
When agencies have issued unlawful guidance, it has often been impossible to meaningfully constrain them. A regulator might issue a warning letter to a person engaged in lawful conduct, but judicial oversight will likely be unavailable because of the “informal” nature of the agency action. Of course, the warning may well be an unequivocal threat of enforcement action. And the regulated person may reasonably understand that failure to fall in line will carry severe consequences. But as long as the agency veils its threats carefully, the only way to challenge such guidance is to call the agency’s bluff and hope for a successful defense in an enforcement action.
Unsurprisingly, most regulated entities opt instead to simply do what they’re told.
Agency abuse of guidance is commonplace in the administrative state, and the U.S. Department of Justice has not been immune. The Department and its components engage in rulemaking and formal interpretation of statutes governing hot-button issues like drug scheduling, affirmative action and firearm restrictions. And with that responsibility, the Department has improperly relied on informal guidance to extend its regulatory reach, forbidding or demanding conduct it has no statutory authority to regulate.
To its credit, the Department has taken the hardest step in any path to recovery and admitted that it has a problem. In November Attorney General Sessions issued a memorandum acknowledging that “the Department has in the past published guidance documents—or similar instruments of future effect by other names, such as letters to regulated entities—that effectively bind private parties without undergoing the rulemaking process.”
The Sessions Memo swore that the “Department will no longer engage in this practice.” And the Department even promised it would make amends by identifying and repealing improper guidance that had already been issued.
So far, the Department has made good on its promises. Just a month after issuing his memo, the Attorney General rescinded 25 improper guidance documents. He followed that up on July 3rd with the rescission of 24 more old guidance documents.
Unfortunately, the Department has not yet fully committed to a life free from its past regulatory mischief. While the memo represents a positive step, it is just a non-binding policy statement. It is guidance about guidance, and it remains useful only so long as the Attorney General stays vigilant.
The New Civil Liberties Alliance has formally petitioned the Department to permanently commit to the directives set out in the Sessions Memo and issue a binding formal rule that would also offer a means to challenge bad practices in court without first having to risk an enforcement action.
The nation’s top law enforcement official must do more than just promise to stop breaking the law. He should demonstrate the Department’s unqualified commitment to principle and adopt a binding rule.
Caleb Kruckenberg is Litigation Counsel for the New Civil Liberties Alliance, a non-profit that engages in pro bono litigation against administrative power. He previously worked as an Assistant Public Defender for the State of New Mexico, an Assistant Federal Public Defender for the District of New Mexico, a criminal defense and civil rights attorney in Philadelphia, and as an advocate for criminal justice reform for the National Association of Criminal Defense Lawyers.