A Welcome Move by the Justice Department

Amid all the current political clamor, the Justice Department recently did something that is both technical and important — and that simultaneously promotes freedom and the rule of law. It deserves bipartisan approval for its announcement that it will no longer rely on “guidance documents” to try to bind the private sector.

Under the Administrative Procedure Act, enacted in 1946, federal agencies are allowed to issue “interpretative rules” and “general policy statements,” some of which qualify as guidance documents. Many of these advise members of the public — companies, hospitals, labor unions, charities, immigrants — about what the government considers to be their legal responsibilities.

Guidance documents take many forms, including circulars to the public and answers to “frequently asked questions.” Every administration relies on them; they are enormous in number. Naturally, the private sector pays close attention to them.

The secretary of Labor might announce, for example, that in his view, the Occupational Safety and Health Act requires employers to take certain steps to reduce the risk of workplace injuries. Or the secretary of Transportation might issue guidance governing automated vehicles — or announce that to reduce the risk of terrorism, airports and airplanes should take specified steps in the next year.

There’s nothing wrong with guidance documents. On the contrary, they’re an important way for agencies to inform the public of their views; they are an instrument of transparency. They can be exceedingly helpful. But under the law, agencies are allowed to issue them without obtaining public comment, meaning that they might be insufficiently considered.

Even more important, courts have made clear that they cannot be legally binding. The Environmental Protection Agency, for example, is not allowed to issue a guidance document specifying that certain conduct is a violation of the Clean Air Act and then rely on that document in an enforcement proceeding.

Even though that’s clear, litigation can be messy, and the Justice Department has sometimes invoked guidance documents when it brings actions against those who might have violated federal law. People in the private sector are aware of that — which is one reason that a guidance document can make their blood curdle.

Read more of this Bloomberg View op-ed by Cass R. Sunstein by clicking here.

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