On October 9, 2019, the White House issued two executive orders designed to curtail the abuse of guidance documents by government agencies. Both orders address due process violations by agencies by requiring notice and an opportunity to be heard before action can be taken or liability imposed against alleged wrongdoers.
The first, titled, Promoting the Rule of Law Through Improved Agency Guidance Documents, is designed to increase transparency and public feedback into the guidance document process. Under the Order, each agency must maintain on its website a single, searchable, indexed database of all guidance documents in effect. Each agency must rescind any guidance document that it determines should no longer be in effect; and may not retain in effect any guidance document without including it in the database. This simple requirement will take much of the mystery out of agency enforcement actions by making guidance documents subject to public scrutiny.
The Order also requires each agency to set forth processes for issuing guidance documents that include:
- a clear statement that guidance documents are non-binding on the public;
- a process for the public to petition for withdrawal or modification of a guidance document;
- and a period of public notice and comment, approval by the agency head, review by OIRA, and compliance with the requirements currently imposed on significant regulatory actions for “significant guidance documents” — those with an anticipated effect of $100 million or more on the economy or those with novel legal or policy issues or that may be seriously inconsistent with action by another agency.
The second order, titled, Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication, is designed to improve transparency and fairness in civil administrative enforcement to avoid ex post facto agency assertions of enforcement authority and imposition of liability for action that occurred before the agency made the public aware of the enforcement risk.
The Order prohibits the use of guidance documents to impose new standards of conduct beyond those imposed by a statute or regulation and proscribes the use of guidance documents in enforcement actions to convey an agency’s understanding of a statute or regulation unless the agency has notified the public in advance through publication of the guidance document. Accordingly, agencies are required to avoid the unfair surprise of imposing any standard of conduct that has not previously been made public.
The Order also includes strict prohibitions against agency attempts to expand their jurisdiction or theories of liability. Thus, before an agency can assert jurisdiction over conduct within a new subject matter or based on a new theory of liability, the agency must have published, within the Federal Register or on its own searchable website, the document on which it intends to rely, including: litigation documents (other than published court orders); settlement agreements; consent decrees; and documents arising out of agency adjudications. The document must be published by the agency before the challenged conduct takes place and the agency must include an explanation of the jurisdictional implications of the document with its publication. In addition, before an agency acts against an individual, that individual must be granted an opportunity to be heard and the agency must provide its response in writing, articulating the basis for any action.
Taken together, these executive orders improve the ability of the public to scrutinize the documents on which agencies may rely, respond to those policies, and have forewarning of novel areas of activity into which an agency intends to expand its own jurisdiction.
Cynthia Crawford is senior counsel at Cause of Action Institute.
