Assuming, though, that some of the mystified critics are either genuinely confounded, and that some are otherwise engaged or just too lazy to do the work, let me give you the latest exhibit in Trump’s record of genuine and possibly lasting conservative reforms.
On Oct. 9, the president signed two executive orders designed to improve transparency when government agencies issue or enforce “guidance” on how best to comply with a law or regulation.
I put quotes around the word “guidance,” because “guidance” sounds benign. Who wouldn’t want “guidance” on difficult questions of regulatory interpretation? But “guidance” has become the kudzu of the regulatory state — issued in greater and greater amounts from more and more federal agencies. These informal missives from the vast federal bureaucracy carry extraordinary real-world costs and sometimes extremely destructive punishments. And they often arrive without even the (too often meaningless) notice-and-comment periods for the public to offer its input.
Trump is bringing down the hammer on the guidance-addicted bureaucrats, building on earlier actions by former attorney general Jeff Sessions and former associate attorney general Rachel Brand.
“For many decades,” the president declared at the signing ceremony, “federal agencies have been issuing thousands of pages of so-called ‘guidance’ documents — a pernicious kind of regulation imposed by unaccountable bureaucrats in the form of commentary on how rules should be interpreted. All too often, guidance documents are a backdoor for regulators to effectively change the laws and vastly expand their scope and reach. Guidance has frequently been used to subject U.S. citizens and businesses to arbitrary and sometimes abusive enforcement actions.”
After joking that he himself might have been the target of such “guidance letters” in the past, Trump hit the crucial note: “Because of these materials and the fact that these materials are too often hidden and hard to find, many Americans learn of the rules only when federal agents come knocking on the door,” he declared. “This regulatory overreach gravely undermines our constitutional system of government.”
Really? How could the alleged destroyer of democracy make such an argument? He explained: “Unelected, unaccountable bureaucrats must not be able to operate outside of the democratic system of government, imposing their own private agenda on our citizens.” And certainly not by unsupervised regulatory statists.
Now that is conservatism. The president gave a full-throated argument for representative, republican government. And that’s one more reason Trump appeals to many rule-of-law conservatives.
The guidance order requires agencies to (1) treat guidance as non-binding both in law and in practice; (2) take public input (i.e., notice and comment); and (3) make guidance orders readily available to the public. It also gives the Office of Management and Budget more control over guidance and requires agencies to issue regulations governing how they issue guidance. This will bake in the reforms across the agencies, making them all the more difficult to undo.
Trump also signed an order on administrative enforcement and adjudication, forbidding agencies from (1) treating noncompliance with a guidance document as establishing a violation of law; (2) citing guidance documents to convey agency interpretations unless they are published in the Federal Register or on the agency’s guidance website; and (3) subjecting any person to “unfair surprise,” i.e., an administrative enforcement action or adjudication absent prior public notice of both the agency’s jurisdiction and the legal standards being applied.
These orders strike deep blows against an increasingly lawless, power-drunk administrative state, about which conservatives used to often warn until some of them submerged all their beliefs into ousting Trump by any means possible, including prosecution, impeachment or —worst-case scenario, because it involves asking the people who run the country — beating him in 2020.
It’s the conservatism that attracts conservatives. How blindingly obvious.