BIG NEWS: Two Executive Orders Ban ‘Guidance’ Practice That Enabled Obama’s TitleIX Kangaroo Courts
An easy way for federal agencies to get what they want, regardless of the laws on the books, is to issue “guidance” purporting to explain the law…”Think of guidance as an off-the-books way for the government to ignore commonly held understandings of fairness. It’s a shameless, unconstitutional scheme designed to skirt judicial review, avoid public scrutiny, and evade accountability”…Recall that the whole due process conundrum on campuses involving sexual assault is the result of a 2011 Department of Education “guidance” memo that pressured universities to lower the burden of proof in such cases. The threat of federal investigation, possible defunding – and perhaps most importantly, public shaming – was enough to convince colleges to make it easier to find accused students guilty. They banned cross-examination, lowered evidence standards and imposed double jeopardy on exonerated students. Was this authorized by law or regulation? Of course not, and a lawsuit targeting the “Dear Colleague” guidance was proceeding when the Trump administration rescinded its predecessor’s guidance. Now, the administration is going even further with a pair of executive orders issued Wednesday that would bar federal agencies from issuing “substantive guidance” – in other words, new rules outside a formal rulemaking.
The first order criticizes commonplace agency practices of evading the notice-and-comment provisions in the Administrative Procedure Act by issuing substantive
guidance…Even when accompanied by a disclaimer that it is non-binding [the Obama administration’s repeated defense of its “Dear Colleague” guidance], a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply. Moreover, the public frequently has insufficient notice of guidance documents, which are not always published in the Federal Register or distributed to all regulated parties. The order instructs federal agencies to “treat guidance documents as non-binding both in law and in practice,” include public input in formulating guidance, and make the documents “readily available to the public”
The second order bars federal agencies from pursuing “a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct.” It notes that the Freedom of Information Act amended the Administrative Procedure Act to better protect Americans from “the inherently arbitrary nature of unpublished ad hoc determinations.” The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy.
There is, of course, a proper role for a regulatory bureaucracy in a democratic republic. But empowering it to operate largely unbound by the traditional checks and balances represents a very real danger. The president’s orders are welcome and long overdue.
thecollegefix– Greg Piper reviewjournal-Editorial
