A major theme of the Trump administration lies in its effort to discipline the regulatory state, with the Justice Department playing a key role. In November Attorney General Jeff Sessions announced that the agency would scrupulously follow the rule-making process provided by Congress, which includes public comment on proposed rules. The Obama administration did not always adhere to that process and instead provided “guidance” as to what it thought a particular rule should be, even if Congress had not given it the authority to do that. Said Sessions: “Any guidance . . . used to circumvent the regulatory process or that improperly goes beyond what is provided for in statutes or regulation,” should not be given effect.” Nor, he added, should any guidance that is “outdated.”
Shortly before Christmas, Sessions announced he had withdrawn some 25 guidance documents, dating to 1975, that the department had judged to be “improper” or “unnecessary” (meaning outdated). Sessions did not say how many of the 25 fell into either category, but a senior department official said that the majority were outdated. Guidance documents tend to “sit there and stack up and are rarely repealed.” Today there may be thousands of guidance documents in government storage. If that is the case, most of the documents are probably no longer needed and thus candidates for quick repeal.
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