Last week, President Trump unleashed the latest volley in his administration's efforts to bring about the "deconstruction of the administrative state" with the signing of two new executive orders relating to agency issuance and use of "guidance documents." The first purports to ensure "improved agency guidance," while the second claims to promote "transparency and fairness" in the use of guidance for enforcement actions. The bottom line for the orders is that, with a few potentially big exceptions, they are unlikely to have much practical impact. Instead, this is mostly a messaging exercise by the Trump administration aimed at advancing the broader conservative campaign to delegitimize the regulatory system by propagating the tired old myth that regulatory agencies are unaccountable and pose a threat to our society.
Before diving into orders' substance, two housekeeping points need to be addressed. First, what are guidance documents anyway? They are best understood as a conceptual catchall term describing nearly anything that agencies put in writing that's not a rule (i.e., that does not have the independent force of law). According to this understanding, guidance documents cover a huge universe of diverse things – emails, webpages, warning posters, and so on – making efforts to "regulate" their issuance and use an inherently difficult proposition. Instead of imposing new requirements like traditional regulations, the function of guidance is to promote regulatory certainty. Moreover, and relatedly, the vast majority of guidance documents are uncontroversial, and indeed actively welcomed by the regulated community.
It is also important to understand that there is nothing inherently "pro-regulatory" or "deregulatory" about guidance documents. It's not the vehicle that matters; it's the content. For example, the Trump/Wheeler Environmental Protection Agency (EPA) has leaned heavily on guidance documents to weaken existing Clean Air Act safeguards on behalf of polluting industries. In fact, those same polluting industries were recently caught on tape urging the Trump administration to focus more heavily on the use of guidance to pursue a deregulatory agenda since time is running out fast on Trump's first (and possibly only) term and since the administration's efforts to achieve deregulation through rulemakings (as opposed to guidance) have floundered spectacularly to this point.
Second, what are executive orders? The irony is that an executive order is essentially a guidance document itself, but one that only a president can issue. Like guidance, executive orders do not have the independent force of law. Instead, presidents use them as a tool of their bully pulpit – that is, to highlight their policy priorities by directing agencies to do something or to amplify some message the administration deems valuable. In the worst cases, such as here, executive orders are used as a political messaging tool.
Turning now to the Trump guidance document executive orders, a review of their substance reveals that the bulk of their provisions are simply restatements of black letter administrative law and various existing policies. In particular, they reiterate several past Supreme Court rulings explicitly or implicitly (most of the Transparency and Fairness order, for example, could be read as an application of the Supreme Court's recent decision in Kisor v. Wilkie, which upheld and clarified the Auer deference doctrine). And many of the procedural requirements for issuing guidance in the Improving Agency Guidance order are simple restatements of a 2007 White ...