Regulation-by-Guidance Practices Scrapped at Justice Dep’t

WASHINGTON (CN) - Taking aim at a tool the last administration used to adopt protections for transgender students, Attorney General Jeff Sessions reported Friday that the Justice Department is putting on the chopping block every guidance document that was used to change an existing law or regulation.

Speaking in the grand ballroom of the Mayflower Hotel in Washington, D.C., where the Federalist Society gathered Friday for its yearly conference, Sessions said guidance documents like these are overreaches of executive branch power.

"Too often, rather than going through the long, slow regulatory process provided in statue, agencies make new rules through guidance documents by simply sending out a letter," Sessions told more than 500 people packed into an opulent ballroom this afternoon. "This cuts off the public from the regulatory process by skipping the required public hearings and comment periods and is simply not what these documents are for.”

Under former President Barack Obama, the Justice Department used guidance documents to broaden its interpretations of existing policy, such as the May 2016 memo that expanding Title IX's prohibition on sex discrimination to include discrimination based on gender identity.

Secretary of Education Betsy DeVos rolled back that policy, which in part allowed transgender students to use the bathroom of their choice, earlier this year.

In addition to reviewing existing instances of regulation by guidance, Sessions said the Justice Department will not employ the practice going forward. Although the Justice Department will continue issuing documents that explain existing agency policy, Sessions made clear that those documents cannot be legally binding outside of the federal government or use "mandatory language" like "shall" or "must."

"Effective immediately, department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local and tribal governments)," Sessions wrote in three-page memo on Friday.

Sessions described the last administration’s use of guidance documents as a way to change existing policy without fulfilling federal notice-and-comment requirements. He said abandoning this practice will force agencies to keep their policymaking public.

While Sessions hailed the move as a return to the rule of law, William Buzbee, a professor at the Georgetown University Law Center, said the announcement is little more than an "overt declaration" of current law.

"What courts have said already for quite a few years is that agencies can't force compliance with a guidance document," Buzbee said in an interview Friday.

Buzbee said many of the guidance documents the Justice Department has issued in the past are careful not to cross the line courts have drawn to prevent agencies from using guidance documents to skirt federal law detailing how they can institute regulations.

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