Dept. of Justice needs to do more than just promise to solve the guidance problem

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 schedulingaffirmative 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.

Photo: © Greg Nash