Lankford Subcommittee Exposes Obama Administration Abuse of Regulatory Guidance Directives

WASHINGTON, DC – The Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management, under the chairmanship of Senator James Lankford (R-OK), today held a hearing on the Obama administration’s abuse and overuse of regulatory guidance directives, rather than the use of the more transparent rulemaking process.

This hearing was a continuation of the Subcommittee’s previous oversight of the use of guidance, including a hearing held September 23, 2015. Today’s hearing focused on the perspectives of non-governmental witnesses with expertise in administrative law, institutional experience in overseeing and coordinating guidance processes, and familiarity with how guidance fits into the larger regulatory apparatus. 

The Administrative Procedure Act (APA) allows agencies to issue guidance directives to clarify existing regulation. In general, the APA allows agencies to issue guidance without adhering to public notice and comment, as required for regulations. Unfortunately, this leaves open the possibility that agencies improperly issue guidance documents instead of regulations in order to take advantage of the APA’s exceptions.

“Americans are tired of being told to what to do by their government. Government supposedly exists to serve people, but the flurry of new executive guidance, from agencies across the government, destroys trust. Executive agencies cannot create law. All guidance must clearly connect to a law previously passed by Congress. While regulatory guidance can provide helpful clarification, it cannot create new policy. It is important to make sure guidance is consistent with the law and clearly defensible, because if it is not, it could be changed based on the whim of the administration’s policy preferences,” said Senator Lankford. “To the extent that agencies can get away with improperly issuing guidance documents, any administration, Republican or Democrat, can advance policies while running roughshod over procedures that Congress enacted to ensure broad public input and agency accountability. This results in unlawful procedure, uncertainty, unaccountability, inconsistency, and a startling lack of transparency.”

Subcommittee Ranking Member Heidi Heitkamp (D-ND) said, “You would argue that a guidance, albeit not binding but certainly terrifying in the case of the regulated entity that there should be more notice and comment there should be more availability in terms of oversight rather than doing it through a guidance.

“I do believe that guidance is used as a shortcut and that shortcut denies the ability of the agency to get enough input to maybe choose a path that in fact could be a better path and provide more safety and provide better outcomes for the regulated and the regulator.”

This year, Lankford has repeatedly challenged the Department of Education’s inappropriate use of ‘Dear Colleague’ guidance directives to mandate policy for schools without adhering to rule-making procedures. Senator Lankford has also questioned the Department of Labor’s enforcement memoranda imposing costly changes to longstanding Process Safety Management standards. Academics and legal experts have agreed with Lankford’s concern with the Obama administration. 

Notable Comments from Witnesses:

Clyde Wayne Crews, Vice President for Policy at the Competitive Enterprise Institute said, “Congress needs a clear grasp of the many thousands of federal agency guidance and memoranda with sometimes practical if not always technically legally binding regulatory effect.”

Paul Noe, Vice President for Public Policy at the American Forest & Paper Association and American Wood Council said, “There were no procedures for OMB to have a heads up as to what was out there- and you can’t review what you don’t know exists. I had desk officers telling me they first knew about a guidance from a story in the Washington Post. And you know there is a breakdown in the management and review process when that’s the case.”

CLICK HERE to read the hearing opening statements and view the full hearing video.

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