On his first day as President, Joe Biden signed an Executive Order repealing a series of 6 Executive Orders that were signed by President Trump as part of an effort to put guardrails on federal regulations; making the process more reliable, accessible, and transparent.
One of these Trump Executive Orders that Biden repealed, Executive Order 13891 “Promoting Rule of Law Through Improved Agency Guidance Documents” forced federal agencies to be more transparent when they issued guidance documents. But now because of Biden’s revocation this order by Trump, agencies have been set lose on the American people.
What are Guidance documents? They are documents produced by agencies to help people understand how an agency might interpret its own regulations. When creating these documents, agencies don’t have to follow the fleshed out process that normal regulations go through. And before President Trump’s Order, they were created with even less transparency: there was no public comment process and they weren’t centrally published anywhere; so the people affected by them couldn’t even be guaranteed to find them. Issuing guidance documents was the quick and dirty way for agencies to issue rules.
That is a problem. While Federal Aviation Administration regulations are only about 2 inches thick when printed, FAA guidance’s totaled over 40 feet; and that was in 1992.
Guidance’s aren’t legally binding, but for the farmer or the small business owner who can’t afford to hire teams of lawyers to navigate complex and technical regulation, they have become dependent on guidance documents to help ensure they are being compliant with the law. Just because a court may toss out a guidance, that doesn’t mean average Americans can afford the risk of investigations, lawsuits, and damage to their reputation that will occur while waiting for a judge to do that.
President Trump’s Executive Order took steps in the right direction to require that agencies “establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component.” The EO also placed some basic requirements for issuing guidance documents such as requiring public comments and detailing how the public can petition such guidance. Trump’s EO also required review of certain guidance by the Office of Information and Regulatory Affairs (OIRA), giving them oversight similar to what formal regulations experience.
In response to President Biden’s revocation of this order, a group of 21 Senators, led by Senator Ron Johnson of Wisconsin, wrote a letter this week to President Biden expressing their condemnation of his revocation of President Trump’s order without good reason. The letter points out that Trump’s Executive Order was based on bipartisan legislation that even Vice-President Kamala Harris voted for. The letter goes on to point out that it’s only fair that the regulated be able to know what is required of them.
While we can only hope that agencies will continue to voluntarily comply with these good governance practices, President Biden’s revocation of EO 13891 is a sad example of how the swamp waters of Washington will always be affected by the tides of red tape.