President Trump signed two executive orders last week designed to bring accountability to administrative agencies when issuing “guidance” on how to interpret federal laws and regulations. The welcome move draws attention to how deeply the federal government can reach into ordinary lives and how the public needs better protection from such invasions.
Examples of the potentially abusive use of guidance abound that directly affect the interests of South Carolinians. In a pending lawsuit, a national group of ranchers and cattlemen is challenging guidance from the Department of Agriculture that cattle traded across state lines must have radio frequency identification (RFID) tags instead of the traditional and legally recognized ownership markings, a requirement that cattle producers and their industry say will cost them billions of dollars. (The arguments in favor of RFID tags are strong; the issue is the procedural shortcut taken by the Department of Agriculture.)
Two years ago, the Food and Drug Administration issued guidance to restaurant chains subject to the legal requirement to post nutritional data on their menus saying exactly how the menus had to be laid out. Noncompliant restaurants face penalties.
In 2011, the Department of Education in a “Dear Colleague” letter issued guidance to educational institutions on how to process Title IX claims of sexual harassment or discrimination, saying that a preponderance of the evidence should be accepted rather than the clear and convincing proof required by courts of law. The guidance, which has resulted in a number of high-profile cases of unjust treatment, carried with it the threat of loss of federal funds or even prosecution.
The problem with “guidance” is that it bypasses the legal requirement that a new federal rule must be submitted to public comment before it is adopted. According to the American Action Forum, a conservative think tank, “The result of these precedent-setting decisions is that it is virtually impossible for a regulated entity to fully achieve compliance” with narrowly tailored guidance.
In “Is it a Free Country?” the British humorist A.P. Herbert has England’s Lord Chief Justice declare, “It cannot be too clearly understood that this is not a free country, and it will be an evil day for the legal profession when it is. The citizens of London must realize there is almost nothing they are allowed to do.”
A citizen of the United States contemplating the growth of federal law and regulation reaching down to affect every life may well be tempted to come to the same conclusion. The U.S. code amounted to a single volume when first published in 1926. The latest edition, published last year, runs to 48 volumes. The Code of Federal Regulations, containing decisions by administrative agencies that fill in gaps in the U.S Code, has exploded from about 23,000 pages in 1960 to more than 185,000 pages in 2018. It could take an ordinary citizen more than a year and a half to read through it, according to the Mercatus Center of George Mason University.
And agency guidance comes on top of that mountain of laws and regulations. No one is quite sure how many guidance documents have been issued. A House survey found more than 13,000 examples over a 10-year period, but concluded that the likely number was much greater because agencies did not regularly publish guidance documents.
The Trump orders require agencies to register their guidance documents, justify them on a cost-benefit basis, and refrain from enforcement actions “except as expressly authorized by law or incorporated into a contract.”
They are a small but welcome and significant step toward redressing the balance between citizens and their government.