Good news on bureaucracy? Some federal agency Trump-Era guidance document portals remain intact
Federal laws in the US code and agency rules in the Code of Federal Regulations are easy to locate online. This it’s not the casehowever, for the thousands of sub-regulatory guidance documents and “interpretative rules”, notices, bulletins, circulars, memos and and so on.
But again, these have never been easy to locate offline either. Guidance documents are seemingly non-binding, intended to inform or clarify, but guidance can be misused to influence public policy and behavior, according to the United States Administrative Conference.
This is a concern especially in presidential administrations inclined to deploy “pen and phone”, as Obama did; or “to act without Congress,” as Biden spokespeople often claim he can.
So it was a good thing in 2019 when Donald Trump posted “Promoting the rule of law through improved agency guidance documents(EO 13,891), and a not-so-good thing when Joe Biden revoked that order the instant he took office in a flurry of executive actions (among them EO 13,992, “Executive Order Revocation of Certain Executive Orders Regarding Federal Regulations”).
Trump’s directive called for housekeeping and disclosure. Agencies have been ordered to clean up and reduce guidelines and make available what they have kept in “a single indexed and searchable database that contains or links to all current guidance documents.”
A suite directive of the then director of the White House Office of Management and Budget, Russell T. Vought, quite wisely, specified that advice should be located or redirected from www.[agencyname].gov/guidance.
These steps—improvement of an important element and sadly neglected”Final Bulletin of Good Agency Guidance Practicespublished in 2007 during the George W. Bush administration by then-OMB director and now Sen. Rob Portman (R-Ohio) — called a major step forward not only for disclosure but also for democratic responsibility.
We never got to see how well agencies could do; the new program had a wobbly launch, but never fully reached cruising altitude before Biden took office. What we can say, however, is that because of Trump’s order – and because of Trump’s order alone – there is now more access to guidance documents than there is. there never was. It is up to future policymakers to restore and improve the Trump agenda or disclosure and accountability will erode. Extend these reforms to more explicitly integrate independent agencies is a among many “emergency” measures now needed.
Prior to Trump’s order, even a congressional inquiry into agency guidance documents called “Bright light on regulatory dark matter» led departments and agencies to disclose only some 13,000although there are hundreds of thousands of them.
In 2020, however, the number has increased dramatically, as I detailed in September 2020 in a roundup compiling the disparate but still very incomplete agency portals. Agencies had curated and released over 73,000 documents by that time.
There were still several months to go in the Trump administration, and agencies continued to add advice to their websites after that September 2020 pre-election snapshot. Despite Biden revoking the Trump order, it would be unseemly for the agencies to simply remove their “/guidance” access completely and replace it with nothing, although some like the Environmental Protection Agency have done just that. As it stands, many portal remnants are still there, and the public can benefit from them if they remain. But it’s a precarious moment, and the agencies could erase them.
Meanwhile, in a brand new investigation of agency portals and/or remnants thereof, I have compiled an “inventory”, so to speak, of more than 107,000 documents. (An image of this inventory is posted at the end of this article; a periodically updated version is and will be maintained on this link). Again, there’s still plenty of unaccounted advice, but now things are made more uncertain due to Biden’s removal order. There is no program left to consistently round up orientation, so the motivations behind the visible 107,000 are unclear. Some agencies have reverted to the aforementioned 2007 “GGPs”; some still list documents under “/guidance”; others list some under headings such as “Law” or “Regulation” that played a part in a “overview of regulatory dark matter I prepared before Trump’s order.
The Guidance Portal Campaign and Other Defunct but Revivable transparency, fairness and regulatory relief The guidelines have the potential to moderate the state’s administrative excesses and, at different times, have garnered bipartisan support. The 118th Congress should address these concerns.
A executive order campaign may still be important in the future, but will be insufficient as we know from the Trump episode. There was always the potential, and indeed it materialized, for resistance organizations, activists, and obviously a new president, to undermine a referral portal focused on executive orders project.
What this series of surveys of policy documents has demonstrated conclusively is that a new Congress will need to spell out in detail formal requirements for archival classification and numbering of policy documents, and requiring a single, government-wide “megaportal”.” in addition to individualized agencies in order to appropriately disclose and monitor misuse or abuse of these sub-regulatory policy documents. The megaportal is particularly important given that many regulatory activities such as “climate”, “equity”, “social justice” and “health” and more are now framed by Biden in inter- agencies”“whole of government” terms that exclude limited government.
Regulatory dark matter like agency memoranda, policy documents, bulletins, circulars and manuals not appearing long-dated (but published erratically) report to Congress on benefits and costs of regulationso there are many reforms that Congress needs to consider in terms of guidance to bring them up to the level of traditional regulatory oversight (which itself is insufficient, but that’s another story).
These reforms include specifying when cost estimates should come into play; determine whether or not the orientation is “economically significantand has been duly submitted to the OMB for review; certifying that the guidelines have been submitted to the Government Accountability Office and both houses of Congress, which is required to be considered valid under the Congressional Review Act (a simple checkbox would suffice); specify when public notice and comment are warranted, such as typical agency rules and regulations; etc Enhanced disclosures regarding guidelines and official inventory updates could also be noted in the Semi-annual unified agenda agency regulatory priorities.
The fact is that it is vital that a future Congress mobilizes to determine and ensure that the guidance on which the public is supposed to rely has been properly disclosed and recorded, and that this information is easily accessible on portals , just as one can otherwise access the laws. and regulations. The foundation of Donald Trump’s guidance document portals was cast on sand of executive order; new versions mandated by Congress must be set in stone.
Guidance, largely off the books, plays an outsized and extraconstitutional role in public life as progressivism and its misguided view of “rule by experts” has taken over. Holding orientation inventories is one element that can advance the larger goal of fundamental challenges to state administrative rule that replace it with Article I catering and democratic accountability.