Reigning in Regulatory Dark Matter

J. Kennerly Davis

During his presidential campaign, candidate Trump promised to jump-start the nation’s then sluggish economy by drastically reducing the burdens placed on American business by unnecessary, outdated, and duplicative regulations. He also promised to rein in overreaching regulators whose unpredictable and aggressive actions had done so much to depress business sentiment and investment.

The President has been delivering on these campaign promises. As the result of a series of regulatory rollbacks and reforms, American businesses have saved over $40 billion to date. The administration has also taken a number of steps to ensure that regulators stay within the legal limits of their authority and follow procedures that are transparent and fully consistent with constitutional requirements for due process and fair notice.

On October 9, the President significantly bolstered procedural safeguards by issuing two Executive Orders designed to curb the informal “guidance” that has often been issued by federal agencies to effectively implement binding policy requirements without following legally required notice and comment rulemaking procedures. Guidance documents can take many forms: memoranda, proclamations, bulletins, circulars, letters, FAQs, and more. Its total volume is vast. As a result of their informality, no one can be sure how many guidance documents are in effect, or how to find them all. No one can be sure what binding requirements have been imposed. Guidance is the “dark matter” of the regulatory universe. This lack of transparency and fair notice seriously undermine the rule of law. The recent Executive Orders are designed to address these problems and strengthen the rule of law.

Executive Order 13891, “Promoting the Rule of Law through Improved Agency Guidance Documents,” requires agencies to post all guidance documents online in a readily searchable format, to provide notice and solicit public comment before finalizing significant guidance, and to allow the public to petition agencies to amend or withdraw existing guidance.

Executive Order 13892, “Promoting the Rule of Law through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” clarifies that guidance documents may not be used to independently establish legal violations separate and apart from the legal requirements contained in statutes and duly promulgated regulations. The Order also states that agencies may not take enforcement actions that may cause unfair surprise.

These Executive Orders have prompted a great deal of commentary. Paul Noe, Vice President for Public Policy at the American Forest and Paper Association, has written about the Orders in Law 360. Susan Dudley, Director of the George Washington University Regulatory Studies Center, has shared her insights in Forbes. The two of them also joined forces to provide commentary on the Orders in a Teleforum held on October 31.

George Shultz, Secretary of State for President Reagan, once observed that nothing is ever finally settled in Washington; nothing. So it will certainly be in this case. The same expansionist forces within the administrative state that created the guidance problem in the first place are sure to push back against this attempt to curb its abusive use, perhaps by repealing the Orders, or by using workarounds of one sort or another to vitiate their effectiveness. Curbing administrative overreach to restore the rule of law is an ongoing project without an end in sight. But it’s clear that this most worthy project got a big boost on October 9.

J. Kennerly Davis, Jr.

Former Senior Attorney

Hunton Andrews Kurth LLP


Federalist Society’s Administrative Law & Regulation Practice Group

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