“Stroke of the pen. Law of the land. Kind of cool,” said Paul Begala, then a top aide to President Bill Clinton in 1998, as he famously contemplated the wondrous way of enacting an agenda without facing Congress.
But there’s another method for presidents to turn worlds upside down that’s even cooler.
The departments and agencies an administration controls issue edicts variously referred to as “guidance,” “interpretive rules” and most prominently in recent years, “Dear Colleague Letters,” a form of “significant guidance.” Unlike executive orders and regulations, these don’t pretend to have the force of law. But recipients often treat them as if they do, since to ignore them can lead to a nasty tiff with the United States government that can wind up with a threat to cut off funds or a lawsuit.
The most controversial of these guidance documents in recent years was the joint Justice Department-Department of Education “Dear Colleague Letter on Transgender Students,” which, after its opening “Dear Colleague” salutation, informed school systems, among other things, that they “must allow transgender students access” to restrooms and lock room facilities “consistent with their gender identity.”
Described as “significant guidance” by the departments, failure to adhere to it could result in a loss of federal funding to school systems under Title IX of the Education Amendments of 1972, which bar discrimination on the basis of sex. The uproar it produced made it famous and it has been at least temporarily blocked by a U.S. District Court.
Another was the “Dear Colleague” letter of April 2011 from the Department of Education’s Office for Civil Rights, also described as a “significant guidance document” that, among other things, lowered the standard of proof required to discipline college students accused of sexual assault or harassment. The discipline handed out using that standard has provoked hundreds of lawsuits.
There are thousands of these guidances across the government, particularly emanating from the Department of Education, the Environmental Protection Agency and the Department of Labor, which have accumulated over the years to the point that nobody seems to know exactly how many there are. The majority are of little note. Many have a big impact, particularly on business and recipients of federal funds.
And they can be wiped out as easily as they are created. They are deployed by both Democratic and Republican administrations and are sometimes called “lawless” by those who don’t like them and think they overreach.
So they offer a target-rich environment for the Trump administration. It’s hard to get specific at this point. But the EPA is a prime target along with the Department of Education, the Consumer Financial Protection Bureau and generally the Dodd-Frank Wall Street reform law.
Anti-regulation conservative groups like the industry-funded Competitive Enterprise Institute have been after these sub-particles of the regulatory state for years. (The CEI’s energy and environment center is led by the former head of President Trump’s EPA transition team, climate skeptic Myron Ebell.)
It’s “regulatory dark matter,” CEI’s Clyde Wayne Crews Jr. wrote, “thousands of executive branch and federal agency proclamations and issuances, including memos, guidance documents, bulletins, circulars and announcements with practical regulatory effect.”
Why dark matter?
“Astrophysicists,” he wrote, “have concluded that ordinary visible matter — the Sun, the Moon, the planets, the Milky Way, the multitude of galaxies beyond our own … make up only a tiny fraction of the universe,” he wrote, “less than 5 percent. Dark matter and dark energy make up the rest.
“Here on Earth, in the United States, there is also ‘regulatory dark matter’ that is hard to detect, much less measure.”
But the Trump administration has detected it.
Cass R. Sunstein, a Harvard Law School professor and former top regulatory adviser to President Obama, noticed some “fine print” when he read the memorandum from Trump Chief of Staff Reince Priebus freezing any new or pending regulations.
The memo was in itself routine, Sunstein noted. Indeed, he wrote in a column for Bloomberg View, “Priebus’s memorandum essentially tracked” the memo issued by then-White House Chief of Staff Rahm Emanuel on Jan. 20, 2009.
But there was at least one major difference, he wrote:
Where Emanuel only targeted “regulations,” Priebus included “guidance documents” as well. This suggests that the Trump administration may soon give the business community something it has wanted for a long time. Agencies issue a lot of guidance documents. Unlike regulations, they lack the force of law. They are merely advisory — but people pay a lot of attention to them.For example, the Environmental Protection Agency might tell companies that if they do not take certain steps, it will consider them to be in violation of the Clean Air Act. Or the Food and Drug Administration might tell the food industry how it wants it to comply with regulations requiring disclosure of information about serving sizes or about added sugars… In theory people are free to ignore guidance documents. If a company violates mere guidance, it cannot be punished. But in practice, any such violation is risky, because it will trigger the agency’s attention, and officials might decide to take action.
There is way too much dark matter to list here. Actually no one has ever listed all these guidance memos in one place.
But for more examples, see some of the “Dear Colleague” letters issued in 2015 and 2016 just on the subject of federal student aid by the Department of Education here and here, covering a range of topics including campus policing, protecting student information, the operations of for-profit colleges and “citizenship and immigration status documentation.”
Or see a hit list that includes both regulations and guidance published by the conservative House Freedom Caucus for the benefit of the Trump administration.
While singling out some dark matter for elimination, including some involving climate change, the caucus also suggested generating some more guidance documents, for example, that would “rollback anti-retaliation provisions of OSHA’s worker injury and illness reporting rule” and an “Obama-era policy allowing union officials to join OSHA inspectors at non-union sites.”
It’s fair to wonder about the origin of regulatory dark matter and why it’s so easy to generate it and then eliminate it.
Think of the vast regulatory apparatus of the United States government as a pyramid. At the top are laws, like the Clean Air Act, actually passed by Congress and signed by the president, the way the framers of the Constitution envisioned things.
Since the laws can’t deal with most situations that will arise as agencies try to enforce them, the agencies generate regulations to do so. Regulations are just below laws in the pyramid. But regulations have a long gestation period ranging from months to years during which the public has an opportunity to comment on them.
But regulations can’t deal with most situations that arise either, so the agencies responsible for them use such vehicles as “guidance” documents and Dear Colleague letters to deal with specific situations. Guidance requires no notice or comment period. Guidance documents have been called “non-rule rules.”
(Not to be forgotten are “waivers” of rules, heavily utilized by the Obama administration during its troubled rollout of the Affordable Care Act and identified by the Trump administration as a way to get rid of elements of Obamacare with or without legislation. The Obama administration essentially waived away the entire “No Child Left Behind” law.)
Here’s a brief summary of the whole structure, courtesy of an often-cited passage from a 2000 opinion involving the EPA composed by an obviously guidance-weary panel of the U.S. Court of Appeals for the District of Columbia Circuit:
Congress passes a broadly worded statute. The agency follows with regulations containing broad language, open-ended phrases, ambiguous standards and the like. Then as years pass, the agency issues circulars or guidance or memoranda, explaining, interpreting, defining and often expanding the commands in regulations. One guidance document may yield another and then another and so on. Several words in a regulation may spawn hundreds of pages of text as the agency offers more and more detail regarding what its regulations demand of regulated entities. Law is made, without notice and comment, without public participation, and without publication in the Federal Register or the Code of Federal Regulations.
Where do executive orders fit in the pyramid? They don’t, even though, unlike guidance, they are laws.
But who said presidents could make laws? Presidents did.
While executive orders all begin with the words “By the authority vested in me as President by the Constitution …” there is nothing in the Constitution that says presidents can make laws. Quite the contrary.
Since no one has stopped them since George Washington issued the first equivalent of an executive order, they remain, as Begala said, “kind of cool.”
Correction: The original version said these documents could be found in the Federal Register or the CFR. They can’t.