Biden's Rejection of a Bipartisan Solution to Agency Guidance

Little more than a month into Joe Biden’s presidency, the executive branch is hitting rewind on the past 4 years, reversing the previous administration’s policies as fast as it can. As John Podesta, former adviser to President Barack Obama, said, “I don’t think it’s fair to say that most of what Trump did can be undone in an afternoon. It’s going to take at least ten days.”

But what happens when what Donald Trump did had cross-ideological support? Do you throw out the baby with the bathwater? The answer for Biden seems to be yes.

Take his reversal of a Trump-era executive order regarding the guidelines that administrative agencies issue to enforce their assigned laws. In 2019, Trump signed Executive Order 13891, which sought to rein in abuse of the Administrative Procedure Act’s exception to the normal rulemaking process: agency guidance.

Typically, agency guidance assists regulated parties by providing clarity. For example, when the COVID-19 pandemic hit the United States, agencies issued guidance on how their regulations applied to new circumstances caused by the pandemic.

Such agency guidance assists the public in understanding the application of laws. At other times, however, agencies treat that procedural exception for guidance — which adds clarity and lowers transaction costs — as a loophole through which to enact substantive policy.

It’s bad enough that agencies, not Congress, write so many of the rules by which we live our daily lives, but recent years have seen an explosion of regulatory action without jumping through any procedural hoops.

The most famous example of this sort of guidance was the 2011 Department of Education “Dear Colleague Letter,” which overnight changed the way colleges were required to respond to campus sexual-assault investigations. Despite its noble intentions, the guidance eliminated many due process protections — and the letter was sent without any input from the public or legislators.

Disturbingly, agencies have failed to even inform the public that these changes to the law have occurred until they run afoul of the federal government. For example, in 2012, the Supreme Court ruled that law enforcement’s placing a GPS tracker on an individual’s car constitutes a search under the Fourth Amendment, thus requiring a warrant. In response to that decision, the Justice Department issued two memos outlining an updated approach to the use of location-tracking technologies.

These memos were not released to the public and were only discovered when the FBI’s general counsel mentioned them during a speech. When DOJ did release the memos, they were almost entirely redacted. Even after an ACLU lawsuit, the government refused to release the memos, continuing to hold that the American public does not need to be informed about the rules under which federal law enforcement operates.

Trump’s executive order sought to prevent this sort of regulatory dark matter and bring transparency and fairness to agencies’ use of guidance. It required agencies to “establish or maintain” on their websites “a single, searchable, indexed database that contains or links to all guidance documents in effect.” That is, he ordered agencies to (finally) be up front with the public about the rules of the game.

This makes sense — and it shouldn’t be politically controversial. In 2017, both Democratic and Republican congressmen introduced the Regulatory Accountability Act, which included these changes to agencies’ use of guidance. The Administrative Conference of the United States, itself a government body, has endorsed this proposal, as have numerous other organizations of varying ideologies, including the left-leaning American Bar Association.

But even though the policy drew bipartisan support, when Biden took office he jettisoned it without any explanation, in a broader effort to undo all that is Trump in Executive Order 13992.

Within days after Biden repealed the order on guidance, the Labor Department rescinded rules seeking to provide transparency and limitations on guidance, claiming that they failed to give the department and subordinate agencies “necessary flexibility.” It’s safe to assume that many more agencies will be following Labor’s lead in once again submerging guidance documents in the murky depths of their files.

For over 25 years, watchers of the administrative state have been worried about the use and misuse of agency guidance. Despite all the flaws of Trump’s presidency, his administration’s approach to agencies’ use of guidance documents was a positive change.

Tossing out a good, bipartisan idea to cleanse the Oval Office of all that is Trump (or Republican) fails to convince the public of Biden’s commitment to “unity.” The new president’s rapid repudiation of common-sense guidance reform is a troubling sign for the next four years.

Christian Townsend is a legal associate at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.