In his first weeks in office, Donald Trump has been all about executive orders. He has also talked about going after Federal regulations. But, there are indications he could go much further. Trump may be a big-strokes person, but he has minions to get down in the weeds, and therein is the real danger. We have a complicated Federal system, and there are too many levers that can be pulled the wrong way and without accountability.
In a recent Washington Post article, Fred Barbash cites a remark made by Reince Priebus in a memorandum freezing any new or pending regulations. In his memo, in addition to regulations, Preibus references “guidance documents.” Barbash thinks this is a clue that the Trump administration has discovered the dark matter of government regulation.
Why dark matter? In our universe, ordinary matter, including planets, stars, gases, debris, make up less than five percent of mass-energy. Dark matter and dark energy make up the remaining 95 percent. (Complicated physics stuff, see Wikipedia.) Guidance encompasses much of what goes on in the regulatory sphere. Hence, the reference to “dark matter.”
So, what are guidance documents? Barbash explains,
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.
This is pretty wonky stuff, but these seemingly low-level documents can wield a lot of power – for good or evil. They come in a variety of other flavors as well: “waivers” of rules, “non-rule rules,” “subregulatory guidance.” Barbash continues with an example,
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.
Barbash explains why guidance letters are necessary,
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.”
How could all this play out? Here’s a really long and scary list of targeted regulations and guidance letters put out by the conservative House Freedom Caucus. It’s entitled, “First 100 Days: Rules, Regulations and Executive Orders to Examine, Revoke, and Issue.” Most are regulations, but many are also “guidance letters.” Changes to these orders could dramatically alter the environment, LGBT rights, immigration, aid to the poor, food safety and so much more – all with the stroke of a pen by Trump or a cabinet secretary.
Here are just a few of the issues on the Freedom Caucus target list and the recommended actions:
Reverse the Obama Administration’s Directive Undermining Work Requirements in TANF. The Secretary should revoke the Obama Administration’s 2012 directive allowing Temporary Assistance for Needy Families (TANF) work requirements to be waived.
USCIS – Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, local, and Tribal Criminal Justice Systems. Waives Obama’s actions on Amnesty (Sanctuary cities)
Rescind NEPA guidance on global warming compliance. The president should retract the Council on Environmental Quality guidance for National Environmental Policy Act reviews published in August 2016. The guidance requires all federal agencies to incorporate the global warming costs of a proposed activity in environmental reviews.
Securities and Exchange Commission: Climate Change Guidance at the SEC. Withhold funds for “The design, implementation, or administration of the Securities and Exchange Commission’s Guidance Regarding Disclosure Related to Climate Change,” or any successor thereto.
We live in a very fragile democracy. There are so many ways for Trump to screw it all up. Vigilance required.