No policy without Congressional debate

On Tuesday, the Department of Justice rescinded 24 guidance documents. Guidance documents are the mechanism for the bureaucratic state to impose new policies without having those policies go through the legislative process. Congress cedes rule making authority to executive agencies over which they have some nominal oversight authority but which in reality function autonomously. The executive agencies then pass rules, guidance documents, implementing favored policies which have never been debated or subjected to public scrutiny - a mockery of republican participatory democracy.

Guidance documents, are a favored mechanism of those who wish to impose without having to bear the burden of persuading. The Title IX Dear Colleague letter was an egregious example, stripping targeted citizens of their due process rights. Ideologues love guidance documents whereas classical liberals abhor them as an authoritarian tool within a democratic system.

Under the Obama administration, given the declining political fortunes of his party and the President's resolute opposition to negotiating with Congress, we ended up with an eight year governance constituted mostly of guidance documents and executive orders, circumventing the will of the people entirely.

With the announcement on Tuesday, all the commentary, left and right, focused on which policies were being affected and how they might be affected. Particular attention was paid to what this might mean in terms of the Federal Government in terms of continuing race-based policies of discrimination against citizens. I saw very little commentary about how we got into the mess of guidance documents in the first place or why people opposed the process of guidance documents as a separate issue from the nature of the particular policy of any guidance document.

Oddly, the government did a better job of explanation than the journalists. The press release announcing the recension of the 24 orders appropriately focused on the fact that guidance documents (and executive orders) are no appropriate means of governance in a federal, republican participatory democracy.

Attorney General Jeff Sessions today announced that, consistent with his November 2017 memorandum prohibiting the Department from making rules without following the procedures required by Congress, he is rescinding 24 guidance documents that were unnecessary, outdated, inconsistent with existing law, or otherwise improper.

“The American people deserve to have their voices heard and a government that is accountable to them. When issuing regulations, federal agencies must abide by constitutional principles and follow the rules set forth by Congress and the President. In previous administrations, however, agencies often tried to impose new rules on the American people without any public notice or comment period, simply by sending a letter or posting a guidance document on a website. That’s wrong, and it’s not good government.

“In the Trump administration, we are restoring the rule of law. That’s why in November I banned this practice at the Department and we began rescinding guidance documents that were issued improperly or that were simply inconsistent with current law.

“Today we are rescinding 24 more and continuing to put an end to unnecessary or improper rulemaking.”

In February 2017, President Donald Trump issued Executive Order 13777, which calls for agencies to establish Regulatory Reform Task Forces, chaired by a Regulatory Reform Officer, to identify existing regulations for potential repeal, replacement, or modification. The Department of Justice Task Force is chaired by Acting Associate Attorney General Jesse Panuccio.

In November 2017, the Attorney General issued a memorandum prohibiting Department of Justice (DOJ) components from using guidance documents to circumvent the rulemaking process and directed components to identify guidance documents that should be repealed, replaced, or modified.

The Task Force identified 25 guidance documents for repeal in December 2017 and has identified 24 more documents to repeal this month. The Task Force is continuing its review of existing guidance documents to repeal, replace, or modify.

Where you stand on any particular policy, whether it be sanctioned government racial discrimination or stripping of due process rights, is an entirely separate issue from the fact that all laws governing our nation should and must be subject to public debate and legislative drafting via our representatives in Congress.