The discussion of President Donald Trump’s record on regulation is distressingly tribal. Emphasizing the importance of environmental protection, worker safety and civil rights, his harshest critics see deregulation as a dirty word. Complaining of regulation run riot in the past, his most enthusiastic supporters celebrate the smallest changes as heroic efforts to restore freedom to a nation that lies prostrate and humiliated before all-powerful bureaucrats.
But on some occasions, the administration does something that all tribes should be willing to endorse. That was the case last week when Trump issued two executive orders designed to improve the operation of the regulatory state. They aren’t exactly earth-shattering, but in terms of the operations of the U.S. government, they are unquestionably important.
The first order requires an increase in the transparency of “guidance documents.” The second requires agencies to ensure that such documents do what they are supposed to do: guide and inform the private sector, rather than imposing binding legal duties on them.
Under the Administrative Procedure Act, enacted in 1946, federal agencies are allowed to issue binding rules only after going through “notice-and-comment rule-making.” That means they have to propose their rules for public comment before finalizing them.
The process can be tedious and time-consuming. But it ensures that members of the public get to participate in the process that culminates in (for example) protection of civil rights, road safety, clean water and clean air. Often agencies change their proposals as a result of public comments. Sometimes they decide not to finalize them at all.
By contrast, guidance documents can be issued in an instant. Under the law, they don’t need to be preceded by public comment.
For example, the Department of Justice might offer guidance about what hotels should do to comply with the Americans With Disabilities Act. The Environmental Protection Agency might post, on its website, a document outlining what it understands to be the duties of farmers under the Clean Water Act.
There are a lot of guidance documents out there, and the private sector can benefit from them. Sometimes it clamors for them.
Guidance documents often answer questions and deliver reassurance. They provide a mechanism by which public officials can tell companies, intensely concerned that some law might be applied to them: “You don’t have to worry about that!”
But over the last 20 years, two problems have arisen. First, some agencies have acted as if guidance documents are legally binding. On occasion, they have tried to rely on them in court, suggesting that if (say) a small company has refused to follow a guidance document involving worker safety, it has violated the law.
Under the Administrative Procedure Act, agencies aren’t supposed to do that. Guidance documents don’t count as law. They are meant to advise people about the government’s views — not to permit, require or forbid.
The second problem is that some guidance documents have been tough to find. They might not be online at all. If they are, they might be in an obscure place. If the goal is to tell the public about the agency’s views, that’s worse than unfortunate.
Trump’s new executive orders are designed to eliminate both problems. Every agency will be required to “establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component.” The website must explicitly “note that guidance documents lack the force and effect of law.”
Every agency must also “rescind those guidance documents that it determines should no longer be in effect” — and may not retain in effect any such documents that are not included in the relevant database. Importantly, agencies must develop procedures to allow public comment on “significant” guidance documents, defined to include those that raise novel issues of law or policy, or that may have an economic impact of $100 million or more.
Sure, these requirements will create logistical problems. Creating a single database that includes each and every guidance document will be a challenge and possibly a nightmare. On the other hand, some agencies already do something like what the order requires; the EPA is an example. If every agency does that, the public will be better off.
There’s also a serious risk that Trump’s administrators will repeal guidance documents that are doing far more good than harm. (Maybe that’s a major point of the new executive orders?) In the context of discrimination and civil rights, for example, some such documents provide needed clarity and combat genuine wrongs. Companies often like them, simply because of that increase in clarity. More confusion is not exactly what America needs now.
With respect to the administrative state, the Trump administration is prone to overheated rhetoric about “unaccountable bureaucrats.” In reality, those people are dedicated public servants, working to comply with the law and accountable to their bosses, including the president, whether Democratic or Republican.
Every day, they work to keep the food supply safe, to reduce health threats from air pollution, and to counter the risk that employees will get sick, or be killed, because of unsafe workplaces. In those endeavors, guidance documents can be a big help.
But we can acknowledge and emphasize those points while also applauding increases in transparency and fidelity to law. Last week’s executive orders are important steps in the right direction.
Cass R. Sunstein is author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”