On Wednesday, President Donald Trump signed two executive orders (titled Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication and Promoting the Rule of Law Through Improved Agency Guidance Documents) that require agencies to publish all informal guidance online and to limit its use in enforcement actions. In his Oval Office signing ceremony, the President defended the orders, arguing that “all too often, guidance documents are a back door for regulators to change the laws and vastly expand their scope and reach.”
Informal guidance can play a helpful role in clarifying regulatory and enforcement interpretations for regulated businesses, who often look to guidance to understand how regulations and statutes apply to them. The Administration itself has relied on guidance to deregulate certain industries.
The Administration contends that the orders address an increasingly present problem where agencies circumvent the notice-and-comment process by using guidance documents to make new, binding law. Russ Vought, acting director of the White House Office of Management and Budget, said in a Fox News column: “Too many agencies have found it easier to impose costly and excessive mandates through informal interpretations buried on their websites instead of going through the regular public review process Congress requires for agency rules.” The orders, he continued, “protect Americans against unfair or unexpected penalties for non-compliance.”
It is uncertain whether the orders meaningfully change long-standing policy or reiterate previous guidelines, such as a 2007 Office of Management and Budget’s Memorandum requiring public comment on major guidance.
The orders are set to take effect immediately. We will have to wait to see whether the orders notably impact agency practice.