Sessions: DOJ prohibited from issuing guidance that creates new rules

Camille Fine

Attorney General Jeff Sessions issued a memo Friday that prohibits the Department of Justice from issuing regulatory guidance documents.

The announcement came as Sessions was taking the stage at the National Lawyer’s Convention, a three-day conference hosted by the conservative Federalist Society at the at the Mayflower Hotel in Washington, D.C. 

Sessions opened his remarks by joking about his testimony before the House Judiciary Committee earlier in the week during which he was grilled on his past statements about meeting with Russian officials. 

“I was just thinking, I want to ask you, is ambassador Kislyak in the room?” he asked referring to the Russian Ambassador he reportedly met with to discuss Trump campaign matters during the 2016 presidential election.


“Does anyone know any Russians?” he asked the room, which erupted in laughter. “Anybody been to Russia?”

During his speech, Sessions told the packed ballroom that agencies have been making new rules through guidance documents by simply issuing a letter, but the practice is ending at the Department of Justice.

“Guidance documents should be used reasonably to explain existing law not to change it or re-write the law,” he said. 

In the memo released Friday, Sessions said it has come to his attention that the department has in the past published guidance documents “that effectively bind private parties without undergoing the rulemaking process.”

“Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments),” he wrote.

Sessions also said Friday that the department is ending “regulation-by-litigation.” 

“The days of ‘sue and settle’ — when special interests could sue an agency, then get the agency to impose a new regulation in a settlement, often to advance an agenda — are over,” he said. 

“The Department of Justice is duty-bound to defend laws as they are written, regardless of whether or not the government likes the results. Our agencies must follow the law — not make it.”

Environmental Protection Agency Administrator Scott Pruitt issued a new policy last month which aimed to curb the agency practice of entering into settlements with outside interest groups that sue EPA.

Pruitt’s policy requires the agency to post all lawsuits online and seek input from affected states and industries about potential settlements.

– This report was updated at 3:22 p.m.

Tags Attorney general Department of Justice Jeff Sessions regulations Scott Pruitt

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