New Trump Orders: Guidance Should Be A Shield, Not A Sword

Susan E. Dudley

President Trump signed two executive orders yesterday aimed at constraining agencies’ use of “guidance documents.” The first, Promoting the Rule of Law Through Improved Agency Guidance Documentssets forth standards for developing new guidance and making existing guidance accessible online. The second, with the weighty title Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudicationestablishes principles for using guidance in civil enforcement.

What is guidance?

These actions are the latest attempt to ensure that the guidance agencies provide regulated parties is informative without being binding, or legally enforceable. Agency guidance, or “regulatory dark matter” as Forbes contributor Wayne Crews has dubbed it, can refer to a variety of different policy statements and interpretive rules, including manuals, opinion letters, and even blog posts. They can provide valuable information on how an agency interprets regulations and statutory law, providing a safe harbor on which regulated parties can rely. But there has long been concern that agencies sometimes use guidance inappropriately to make binding policy without going through transparent rulemaking steps.

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