Earlier this month President Trump signed two executive orders intended to restore transparency and fairness to the United States’ many bureaucracies. The two orders will prohibit government bureaucrats from enforcing rules that aren’t public. They will also remove the teeth from guidance documents that haven’t gone through the regulatory approval process, all while giving Americans power to ensure that unfair or incorrect guidance is withdrawn.
These new accountability measures are long overdue. For years many institutions have issued guidance documents that are, in reality, backdoors to massive new regulations. They cloak them under the guise of assisting consumers in the interpretation of current law, but they are really new rules in and of themselves. The result is often massive confusion of what the law states, as well as arbitrary enforcement of the said dictates that leads to innocent Americans receiving fines and penalties.
Many departments and agencies will become more accountable thanks to President Trump’s new orders; however, few will benefit as much as the Treasury Department, which imposed more net costs than any other agency in Fiscal Year 2019.
When I began serving as treasurer, the Bureau of Alcohol, Tobacco and Firearms (ATF) was housed in the Department of Treasury. At the time, it was one of the most contentious bureaus in the country. It frequently made news for effectively disenfranchising American citizens of their Second Amendment rights in defiance of the law.
A report issued by the Constitution Subcommittee of the Judiciary Committee in 1982 found that ATF directed 75 percent of its gun prosecutions towards innocent civilians. They did not inform gun owners of official rules. In some cases, ATF did not publish them; in others, it seemingly intentionally placed them in fine print on the back of forms to drum up non-compliance. Its selective enforcement of these so-called “requirements” became so unethical that Americans received prosecution for acts that even the then-acting director stated were lawful.
At Treasury, we fought long and hard to fix these bureaucratic regulatory sins. One thing is for sure, though: Having these two new executive orders in place at the time would have made our jobs significantly more manageable. ATF agents, all too eager to rise in the bureaucracy’s ranks, wouldn’t have even been able to ponder citing bait-and-switch, non-posted regulations to pad their confiscation numbers. What’s more, ATF’s victims would have received a platform to protest and have their voices heard much sooner.
Nevertheless, the new Trump orders are still plenty relevant to Treasury today. Since that time, ATF has split into two, with one half, the Tax and Trade Bureau (TTB), remaining under Treasury’s purview.
TTB collects taxes on firearms, alcohol and tobacco in the U.S. Although taking on a new name, it behaves just as recklessly as ATF.
Ever since its foundation, TTB has seemingly gone out of its way to ensure that firearms and ammo merchants remain out of compliance with the law. In fact, on its own website, TTB states, “The Regulations and Rulings Division of the [TTB] attempts to keep answers to questions current and accurate. However, TTB does not guarantee that this information is 100 percent accurate.” This is regulatory capture at its finest.
TTB’s lack of accountability extends far beyond its taxation powers. For example, under its label regulation authority, at the end of last year, it proposed Notice Number 176, a rule to “modernize” alcohol labeling and advertising regulations. In reality, however, the so-called modernization effort is a massive regulatory power grab. The rule is chock full of reckless new mandates. Among the worst is one that will give TTB authority to ignore its past work by continuing to issue fines and non-compliance warnings for labels it approved previously.
It is hard to imagine that regulatory practices like the aforementioned will stand, at least on their current scale, after Trump's signing of the new orders, which clarify the intent of the Administrative Procedure Act and ascertain that “regulated parties must know in advance the rules by which the Federal Government will judge their actions."
While these orders should ensure TTB’s selective enforcement games gradually move to a halt, the Trump administration should not stop here. Treasury Secretary Steve Mnuchin should advance the reform ball even further by replacing TTB’s current interim administrators. These current provisional administrators are longtime bureaucrats and creatures of the old-world order. It would not require Senate confirmation to replace them with new, permanent ones. Doing so would only help to ensure that the White House achieves its desire to restore accountability quickly and seamlessly.
Regardless of what it decides, it is clear that, like the Reagan administration before it, the Trump White House is effectively reining in bureaucracy and making government more accountable to the public. For that, it deserves commendation from the media and politicians on both sides of the aisle.
Bay Buchanan served as the 37th Treasurer of the United States under President Ronald Reagan.