The Trump Administration's New Anti-Safeguard Executive Orders on Guidance, Explicated

James Goodwin

Oct. 10, 2019

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 House Office of Management and Budget (OMB) Bulletin for Agency Good Guidance Practices.

None of this should be terribly surprising, since, as noted above, these are executive orders, which can only do so much as legal instruments anyway.

That being said, there are plenty of troubling aspects to these orders. As a result, policymakers and the press should keep a close watch on how the orders' provisions are implemented, especially if they are concerned with ensuring that the Trump administration fulfills its responsibility to protect the public and environment against unacceptable harms or with guarding against the administration's continued abuses of power on behalf of corporate elites.

First and foremost, as noted above, these orders are best understood as political messaging tools, and the message they convey is misplaced and dangerous. Conservatives have long sought to cultivate among the general public the myth that regulatory agencies are out of control and thus threaten our democracy and economy. This myth in turn lays the political groundwork for their assault on regulatory safeguards – which President Trump has made a top priority of his administration – to the benefit of regulated industry and the small government ideologues among their ranks.

This message is of course ludicrous coming from a sitting president. If agencies aren't following laws and policies the president has made a priority, that's a failure of the agency leadership over whom President Trump has direct control. A president and his inner circle can fix such management problems with meetings or, in the worst cases, dismissals of any offending agency leaders. Executive orders are not necessary – unless, of course, the real goal is to advance some message.

Worse still, the maligning of our bureaucracy risks disastrous consequences to the effective functioning of our democracy. It undermines regulatory agencies' authority and ability to carry out duly enacted laws, and it reinforces the decades-long campaign by conservatives to foment public distrust of government. This in turn risks undermining the health of our democratic institutions and creating a fertile political environment for demagoguery. Hmmm.

The Transparency and Fairness order is significant in this regard. Rather than solving a real problem, it seems more focused on creating a myth that agencies are running around punishing companies with arbitrary enforcement actions. That just doesn't happen in reality. (Although, the Trump administration's politically motivated retaliatory actions against California for its alleged failures to implement delegated environmental program responsibilities would seem to be the kind of improper action this order is meant to root out.) Of course, agencies should do all the things that the order calls for. And in fact, they already do. But by establishing these "requirements," the Trump administration is implying that there is a problem to be solved, and thus by extension reinforcing its message that regulatory agencies are unaccountable rogues.

Put differently, by offering a "solution," these orders create the illusion (1) that there is a "problem" to be solved and (2) that by "solving" this problem, the Trump administration is taking meaningful action on behalf of the public. We should reject those illusions.

Second, some of the provisions of the orders expand upon existing requirements in ways that, if strictly enforced, would be extremely costly and potentially impossible to implement. For example, Section 3 of the Improved Agency Guidance order would require agencies to list all of their guidance documents on a searchable website. That may seem reasonable at first blush. But, as noted above, guidance could theoretically refer to thousands of different items. As such, literal compliance could be impossible. And even if it's not, the sheer volume of documents in the database might make it unusable. It's not clear whether this result is intentional or just bad lawyering – admittedly a perennial question with this administration.

Separately, Section 4 of that order would expand notice and comment procedural requirements to all "significant" agency guidance. (Currently, the 2007 OMB Bulletin only applies this requirement to those guidance documents that qualify as "economically" significant – a small subset of the universe of significant guidance documents.) The universe of "significant" guidance is potentially very large, especially if that term is interpreted broadly. Because notice-and-comment procedures can be extremely time- and resource-intensive, complying with this aspect of the order could waste agencies' scarce resources at best, or prove unworkable at worst.

Third, the orders appear to give the White House some troubling new authority to interfere in agency actions. For example, though its language is not at all clear, Section 3(d) of the Improved Agency Guidance order appears to give the OMB Director the authority to push agencies to rescind some of their existing guidance. Separately, the Transparency and Fairness order appears to assert a lot of presidential authority over how agencies conduct their inspections or utilize alternative enforcement approaches (e.g., self-reporting, etc.). While none of those alternative approaches are inherently problematic, as a general rule, top-down policies governing enforcement strategy are a dangerous road to go down. Every case is different, and agency enforcement officials should retain significant flexibility in how they deploy these approaches (though confined by principles of fair notice and due process) in order to ensure effective accountability for regulatory violations.

Finally, the provision in Section 3 of the Improved Agency Guidance order requiring agencies to create a searchable web-based database of their existing guidance documents could be weaponized through the use of the Congressional Review Act (CRA). As the Trump administration and congressional conservatives have demonstrated, the CRA is a powerful anti-regulatory tool, enabling narrow majorities in Congress to wipe out critical safeguards. The database called for in Section 3 would effectively create a one-stop-shop for conservative lawmakers looking to deploy the CRA again and again to repeal guidance documents that they oppose on political grounds. (To be sure, these lawmakers would need to establish that any targeted guidance were not already in compliance with the CRA's submission requirements, which is what triggers Congress's authority to use the law to repeal those documents.)

Incidentally, Section 3 also requires agencies to review their existing guidance and repeal any they deem unnecessary. (Unlike with traditional regulations, guidance can be easily repealed with the stroke of a pen.) For anti-safeguard lawmakers, though, rescission through the CRA is preferable because it has the added benefit of prohibiting the issuing agency from replacing the targeted guidance with anything that might be considered "substantially the same." This "salt the earth" provision would theoretically limit the ability of a future administration that is more concerned with the public interest from pursuing new protections.

In the final analysis, the two new Trump executive orders seem to be a lot of sound and fury, signifying nothing – at least for now. There are, however, several levers among its provisions that, depending on how the Trump administration pulls them, could do a lot of damage to our regulatory system. I'll be watching closely to see how these orders are implemented. I hope lawmakers and the press do the same.

Read More by James Goodwin
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