Good News On Red Tape? Some Trump-Era Federal Agency Guidance Document Portals Remain Intact

Policy Good News On Red Tape? Some Trump-Era Federal Agency Guidance Document Portals Remain Intact Clyde Wayne Crews Jr. Contributor Opinions expressed by Forbes Contributors are their own. Policy director at Competitive Enterprise Institute New! Follow this author to stay notified about their latest stories.

Got it! Aug 16, 2022, 11:51am EDT | Share to Facebook Share to Twitter Share to Linkedin Federal statutes in the U. S. Code and agency rules in the Code of Federal Regulations are easy to locate online.

This is not the case , however, for the thousands of sub-regulatory guidance documents and “interpretative rules,” notices, bulletins, circulars, memoranda and so forth . Donald Trump, July 16, 2020; photo by Clyde Wayne Crews Jr. Clyde Wayne Crews Jr.

But then again, these were never easy to locate offline either. Guidance documents are ostensibly non-binding, meant to inform or provide clarity, but guidance can be inapprorpriately leveraged to influence policy and public behavior, according to the Administrative Conference of the United States . This is a concern especially in presidential administrations inclined to deploy the “pen and phone,” as Obama did; or to “act without Congress,” as Biden’s spokespeople often declare he can do.

So it was a good thing back in 2019 when Donald Trump issued “ Promoting the Rule of Law through Improved Agency Guidance Documents ” (E. O. 13,891), and a not-so-good thing when Joe Biden revoked this order the instant he took office in a flurry of executive actions (among them, E.

O. 13,992, “ Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation ”). Trump’s directive called for housecleaning and disclosure.

Agencies were ordered to scrub and pare down guidance and make available that which they retained in “ a single, searchable, indexed database that contains or links to all guidance documents in effect . ” MORE FOR YOU Biden’s Proposed IRS Bank Account Snooping Authority Runs Into State Resistance 2021 Diversity Green Card Lottery Winners To Be Shut Out Because Of Visa Deadline The Swamp Grew – Even Under President Donald Trump A subsequent directive from then-director of the White House Office of Management and Budget Director Russell T. Vought, sensibly enough, specified that guidance be located at or redirect from www.

[agencyname]. gov/guidance . These steps— improving upon an important and unfortunately neglected “ Final Bulletin for Agency Good Guidance Practices ” issued in 2007 during the George W.

Bush administration by then-OMB director and now Sen. Rob Portman (R-Ohio)—qualified as a major advance not just for disclosure but for democratic accountability. We never got to see how well agencies could do; the new program got a wobbly launch, but never completely got up to cruising altitude before Biden entered office.

What we can say, though, is that because of Trump’s order—and only because of Trump’s order—there is now more access to guidance documents than there has ever been. It is up to future policymakers to restore and improve upon the Trump program, otherwise disclosure and accountability will erode. Expanding such reforms to more explicitly incorporate independent agencies is one among many such “emergency” steps now necessary.

Before Trump’s order, even a congressional inquiry into agency guidance documents called “ Shining Light on Regulatory Dark Matter ” caused departments and agencies to disclose only some 13,000 , when hundreds of thousands exist. During 2020, though, the counts rose dramatically, as I detailed in September 2020 in a roundup compiling the disparate but still highly incomplete agency portals. Agencies had retained and posted over 73,000 documents by that time.

There still remained several months to go in the Trump administration, and agencies continued adding guidance to their websites after that September 2020 pre-election snapshot. Despite Biden’s revocation of the Trump order, it would be unseemly for agencies to simply remove their “/guidance” access altogether and not replace it with anything, although some like the Environmental Protection Agency did just that. As it stands, many portal remnants are still there, and the public can benefit if they remain.

But this is a precarious moment, and agencies could erase them. In the meantime, in a brand-new survey of agency portals and/or remnants thereof, I’ve compiled an “inventory,” so to speak of over 107,ooo documents . (An image of this inventory is posted at the end of this article; a periodically updated version is and will be maintained at this link ).

Again, there still remains a great deal of unaccounted-for guidance, but now things are rendered more uncertain owing to Biden’s revocation order. There remains no program to systematically round guidance up anymore, so the motivations underlying the 107,000 visible are unclear. Some agencies have reverted to the aforemented 2007 “GGPs”; some still list documents at “/guidance”; others list some under headings like “Law” or “Regulation” that had played a role in a “ regulatory dark matter” roundup I prepared before Trump’s order.

The guidance portal campaign and other defunct but revivable transparency, fairness and regulatory relief directives have potential to moderate administrative state’s excesses, and at different times have garnered bipartisan support. The 118th Congress should look into these concerns. An executive order campaign can 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 did materialize, for resistant agencies, activists, and obviously a new president, to undermine an executive-order-driven guidance portal project. What this series of guidance documents surveys has demonstrated conclusively is that a new Congress will need to specify in great detail formal requirements for archive-worthy classification and numbering of guidance documents, and to require a single, government-wide “Megaportal ” in addition to individualized agency ones in order to appropriately disclose and monitor potential misuse or abuse of these sub-regulatory policy documents . The megaportal is particularly important given that many regulatory pursuits such as those in “climate,” “equity,” “social justice” and “health” and more are now framed by Biden in cross-agency “ Whole-of-Government” terms that preclude limited government .

Regulatory dark matter like agency memoranda, guidance documents, bulletins, circulars, and manuals do not appear in the longstanding (but erratically published) report to Congress on regulatory benefits and costs , so there are numerous reforms for Congress to look at with respect to guidance to bring it up to par with traditional regulatory oversight (which is itself insufficient, but that’s another story ). These reforms include specifying when cost estimates should come in to play; determining whether or not guidance is “ economically significant ” and whether it was appropriately submitted to OMB for review; certifying that guidance was submitted to the Government Accountability Office and to both houses of Congress, which is necessary in order to be considered valid per the Congressional Review Act (a mere check-box would do); specifying when public notice and comment is warranted, as they are for typical agency rules and regulations; and the like. Enhanced disclosures regarding guidance and formal inventory updates could also be noted in the twice yearly Unified Agenda of agencies’ regulatory priorities.

The point is, it is vital that a future Congress step up to determine and assure that guidance the public is expected to rely upon has been properly disclosed and registered, and that this information is conveniently accessible in portals, just as one can otherwise access laws and regulations. The foundation for Donald Trump’s guidance document portals was poured on executive order sand; new congressionally mandated versions need to be anchored in concrete. Guidance, largely off the books, plays an outsized, extra-constitutional role in public life as progressivism and its flawed vision of “rule by experts ” has assumed dominance.

Keeping inventories of guidance is one component that can advance the broader goal of fundamental challenges to the administrative state rule that replace it with Article I restoration and democratic accountability. Federal Agency Guidance Document Inventory tops 107,000. Clyde Wayne Crews Jr.

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